Alabama, B-C, 1843-1995, Undated

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BROWN, Richard, bl, ele
JOHNSON, Ernest, OL, éle

c. A la (Hale), 2/1/1946; and
. Ala. (Hale), 1/25/1946

@
OQ

JOHNSON y. STATE Ala. 17
Cite as 24 So.2d 17

8. Homicide €=294(1) ;

JOHNSON v. STATE. In murder prosecution, where defend-
ant introduced no evidence in support of his

2 Div. 217.
insanity plea, court was not bound to charge
Supreme Court of Alabama. on such phase of law.
; 1945.
Dec. 6, 1945 9, Homicide €=327

On appeal from judgment sentencing
defendant to death on his conviction of first
tim’s death as result of force unlawfully degree murder, Supreme Court must ex-
applied is sufficient predicate for introduc- amine. record for any error, whether
tion in evidence of defendant’s voluntary pressed upon court’s attention or not.

1, Criminal law €=517(4)
In murder prosecution, proof of vic-

confession, and state need not first intro-
duce evidence tending to identify defendant :
as guilty agent who applied such force. Appeal from Circuit Court, Hale County;

9 Criminal law €=338(3), 563, 741(1) W. E. Callen, Judge.

Circumstantial evidence may afford Ernest Johnson, alias McGruder, was
satisfactory proof of corpus delicti, and, if convicted of murder in the first degree, and
facts from which jury may reasonably infer he appeals.
that crime was committed are presented, Affirmed.
question must be submitted to jury and —

, : : . S. W. H. Williams, of Greensboro, and
other evidence tending to implicate accused Judson C. Locke, of Motion, for ‘appellactt.

is admissible.
Wm. N. McQueen, Atty. Gen., and John
3. Criminal law €=534(2) O. Harris, Asst. Atty. Gen., for the State.
Homicide ¢=171(2)
In murder prosecution, testimony, in- LAWSON, Justice.

troduced by state before introduction of The defendant was jointly indicted with
defendant's confession, as to physical con- one Richard Brown for the murder of Jack
ditions at decedent’s home, where state con-  [. Walton, but separately tried. Being un-
tended that crime occurred, was admissi- able to employ counsel, two practicing at-
ble, not only to shed light on what tran- torneys at the Hale County Bar were ap-
spired at place of crime, but to corroborate pointed by the court to represent defendant.
confession, He pleaded not guilty and not guilty by rea-
4. Criminal law €=680(1) son of insanity, and was found guilty of

The order of proof of defendant’s con- murder in the first degree and was sen-
fession of crime charged and facts cor- tenced to death by electrocution.
roborating such confession may be de- The decedent lived in Hale County, Ala-
termined by trial judge. bama, on a farm about fourteen miles from
5. Criminal law €°448(1) Greensboro. The defendant and Richard
. in . rown were employed by him to work on
In murder prosecution, sheriff's testi- the farm. The body of the decedent was
mony that no threats, promises, induce- recovered from the Warrior River on the
ments, or offers of reward were made to de- morning of March 6, 1945, at a point about
fendant BO PLOCuTE admission of his com- one-half mile below Lock 6. He had been
plicity in crime was admissible as against absent from his home for a period of three
objection that statements were mere COn- or four weeks and had not been seen by his
clusions and opinions of witness. friends and acquaintances during that peri-
od of time. When the body was located

In murder’ prosecution, evidence of there was a tractor wheel and hub attached
’ . . .

corpus delicti was sufficient to lay predicate to the right forearm and right thigh by

means of a “plow rope.” It was necessary

Seamer Hi evidence of defendants to cut this rope before the body could be re-
moved from the river, although the search-

7. Criminal law >1122(5) ers were using “grab-hooks.” Mr. Nelson
Refusal to give jury defendant’s re- Grubb, a toxicologist connected with the
quested written charge, not in record on ap- State, who examined the body of the de-
peal from conviction, is not reviewable by ceased and who by virtue of his training

- Supreme Court. Code 1940, Tit. 7, § 273. and experience was shown to possess the

24 So.2d—2

6. Criminal law €>517(4)


18 Ala. 24 SOUTHERN REPORTER, 2d SERIES

necessary qualifications to express his opin-
ion as to the effect of injuries upon the hu-
man body, testified that there were five
holes in the chest region of the body of the
deceased, that one hole “penetrated the
jugular vein and into the wind pipe,” and
that “a wound through the jugular vein, un-
less medical attention was received immedi-
ately, would be fatal” within “two or three
minutes.” .

Defendant was arrested March 5, 1945,
the day before the body of decedent was re-
covered, and within two hours had con-
fessed to Mr, B. W. Coleman, the Sheriff of
Hale County, that he had participated in
the killing of Mr. Walton. Sheriff Cole-
man testified for the State as to the defend-
ant’s confession, the substance of which is
as follows:

On the morning of February 7, 1945, the
defendant suggested to Richard Brown,
“Let’s shoot Mr. Jack (the deceased) and
rob him”; that on the next morning the de-
fendant brought his rifle and left it at the
home of Brown, which was about 150 yards
northwest of the house of the decedent;
that the defendant and Brown then pro-
ceeded to the deceased’s house to perform
their usual morning duties; that shortly
after the decedent left his home in a pickup
truck, the defendant and Brown, at defend-
ant’s suggestion, broke into and entered the
home of decedent and removed therefrom a
shotgun, shotgun shells, a .38 automatic
pistol and cartridges; thereafter they went
back out into the yard of decedent and plan-
ned “how they were going to shoot Mr.
Walton when he got back”; that when they
saw the decedent returning to his house,
they hid behind it until he was about to en-
ter; that the defendant ran to the north
side and Brown to the south side of the
house, the house facing east; that Brown
did not stay at the south side, but joined the
defendant at the north side before the de+
cedent had entered the house and that just
as Mr. Walton was unlocking the door to
the house, Richard Brown shot him with a
shotgun, after which both the defendant
and Brown immediately ran down behind
the garden, where the defendant: asked
Brown, “Did you get him?” and to which
Brown replied, “I think so because he grab-
bed his right shoulder”; that after a minute
or two, leaving the shotgun behind, the two
of them returned to where Mr. Walton was
lying to see if he was dead; that the-de-
fendant asked Brown “Is: he dead?” to
which Brown replied, “No, because he

at down ebap ed e® ¥

keeps moving his right hand”; that the de-
fendant then told Brown, “Shoot him
again,” and Brown responded by shooting

‘the decedent with the pistol; that they

placed the body of decedent in a wagon and
removed his money and other valuables;
that there was a “skiff” in the yard and that
the defendant and Brown, after cutting
holes in the “skiff,” placed it in the wagon
over the body of decedent; that they then
placed a tractor wheel and hub and some
“plow line” in the wagon and drove the
wagon, with the body of deceased in it, to
the river bank; that when they arrived at
the river they removed the “skiff” from the
wagon, placed the body of decedent into the
“skiff? and, after straightening out the
body, tied the tractor wheel and hub to the
body; that they then placed the “skiff,”
containing the body of the deceased, in the
river and shoved it off; that within a short
time thereafter the body of decedent, with
the weights attached thereto, fell out of the
boat into the river; that the defendant and
Brown returned to the home of the dece-
dent in the wagon, where they attempted to
remove the blood from the wagon as well as
from the porch floor where the decedent
fell after he was shot, but that they were
unable to remove all the blood from the
porch floor, so defendant cut the blood off
the floor with a knife, but in doing so cut
holes in the flooring and in order to keep
anyone from noticing the freshly cut holes,
nailed some planks over the flooring which
had been cut.

Before testifying as to the confession of
the defendant, the witness Coleman stated
that he was familiar with the house in
which the decedent had lived, having visit-
ed it on a number of occasions. He de-
scribed the construction of the house and its
premises. He also stated that he examined
the flooring of the porch and that he re-
moved therefrom some planks which ap-
peared to have been nailed on top of the
flooring recently, which planks were intro-
duced in evidence. He further testified
that he found wagon tracks leading from
the premises of the decedent through a pas-
ture down to the river bank and that he al-
so located wagon tracks leading from the
river bank to the yard of the decedent. ‘He
further stated that he detected stains on a
“sleeper” under the porch of the decedent’s
house and also under the bottom of aiwag-
on which was found in the decedent’s yard.

The State proved by qualified toxicolo-
gists that the stains on the porch, under- the

porch an
the bloo

The dc
His vers
of the k
was rela
for the S
sion mac
defendan
ed the k:
responsi!
are som
testimony
they are:
details,
his accon
that he \
were fire.
question
shoot agi
that he ar
that each
al proper
body of
tempting
the porch
porch, T)
ticipated i
of his acc.

[1] Th
upon this .
of evidence
independe
confession
admitting
tention we
a result o}
that the la)
introductio
made. It :
before a c
troduce evi
cused as th
lawful for
State, 239
State, 225 ;
State, 217 .

[2] The
diction tha
afford satis
licti and if
the jury m
has been cx
submitted t:
tending to i
rendered ad
Ala. 163, 16
Ala. 618, 11


From ‘a distance, his hound bayed
dismally into the morning air and a

pet pig, which Prescott had raised,

-gsnorted at the intruders from its vigil
beneath Jake Prescott’s couch. His
neighbors were puzzled because
“Uncle” Jake, as they called him, had
never been known to leave his home
without asking them to take care of
his livestock. F
’.. Sheriff McDowell had known Pres-

. cott for years and he was thoroughly

“ familiar with the wilderness in which
Uncle Jake lived. He knew that any-
thing could have happened. He spun
from his desk abruptly.

“Hogan!” he called to his Chief
Deputy. “Get out to Maxine and check
up on Jake Prescott. The old man has

_ disappeared. Some of his neighbors

“have just reported his disappearance.
Go out there and get them organized.
Tu arrange for your relief in the morn-

T= search for. Jake Prescott began
on the evening of January 17. Offic-.
ers combed the dense woodland sys-
tematically. The swirling depths of.
_ the muddy Warrior River were dragged
for miles, but no clew to his where-
abouts could be found. Each day that

‘passed without a trace of Uncle Jake

- brought increasing alarm to McDowell

~ and the countryside. :
-”. ‘Then on the morning of February 11, '

ten miles from Jake Prescott’s home, a
boy walking: along the road stopped
. suddenly at “Short Creek” bridge over

River. His eyes snapped open wide and

“> white. © = 7:

In-the deep, murky water a few feet
away from the bridge floated the body
of a man, face downward.
called to a man passing along the road

at the time, and together. they reported |
their gruesome find to the Sheriff's of-.

¢

“> fice in Birmingham. a8

The body was removed from the wa-

_ ter and hurried to the Hillman Hospi-~
tal in Birmingham where it was identi-
fied immediately as that of the missing

"Jake Prescott. Decomposure had be-
~. gun, but the condition of the body dis-

closed that a brutal, beastial crime had
head had _ been

-", been committed.

- Jake Prescott’s

" erushed with a heavy instrument, and

his throat had been cut clear around.

ce . His abdomen had been crudely slashed

open, and a heavy sledge hammer and

an ax had been thrust into the cavities. —

~The handles still protruded. The sus-
penders of his over-alls had been

~ -glipped down and tied around the ham-

mer and the ax, evidently to hold them
- in place so that the body would remain
submerged. Prescott’s face, even in

-* death, wore an expression of horror.

_. Sheriff McDowell and his deputies
examined the body. The Sheriff could

.- nét help shuddering at the viciousness
of the crime. He looked at the sledge.
hammer and the ax that were supposed’

to keep the body beneath the water.

“You just can’t keep a dead man

down,” he said softly—and there was
no humor in his voice.

T= Sheriff started a determined hunt
for the killer that knew no rest.
During Holt McDowell’s entire tenure
of office no crime in Jefferson County
had long remained unsolved, and he
did not intend to let the killer of Jake

Prescott establish a precedent.
Jake Prescott’s

existed between the two men.

share on a moment’s notice.

Sam Prescott was questioned con-
cerning his knowledge of his brother's .

When neighbors learned that the
wealthy old bachelor. was missing
from his cabin, they knew that
something had

.a@ tributary leading into the Warrior:

The boy .

¢ brother Sam, &
freight agent at Fruithurst, Alabama, |
was contacted. Previous investigation
had shown that a deep-rooted affection
It had
always been understood between them
that what one had the other could

happened to, him --

affairs—business and social. But Sam
could shed no light on the mystery.
Sheriff McDowell. called in his top
veterans, Deputies. Dewey Rickles and
Troy Tate. :
“Men,” he told them, “you are to de-
vote your full time and attention to
this case. I will work with you and
back your every move, but the killer of

Jake Prescott must be found.”

“Something has to give now!” re-
marked Deputy Sheriff Charlie Hamil-
ton. “When Rickles and Tate get to-

gether they'll turn Hell upside down to

get what they’re after.” re
. The two deputies streamed out of
Birmingham immediately to. begin a :
campaign of questioning in the sparse-_-
ly settled section around Jake Pres- .
cott’s home. Arriving at the Burrells’, |
the neighbors who had reported his
disappearance, they found that on the
evening of January 16 Prescott had
appeared very nervous and worried.
He had tried to persuade some of them
to spend the night with him.

“Was he in the habit of keeping
much money around the house?” ask-
ed Tate.

“Y don’t know,” replied Mrs. Burrell.

“was he buying or selling any cattle
or timber?” ;

“No, but a man named Burns was
trying to buy his land from him. I
think Uncle Jake told me that this .
Mr. Burns had offered him $40,000 for
the timber on it.”

“Was that E. J. Burns, the real es-
tate man from Birmingham?” queried
Rickles. 3
. “Yes, every one around here knew
him. He came out to see Mr. Prescott
a lot of times. They were good friends.”

“tow long have you known Burns?”
continued Rickles. post:

“J don’t know exactly, but it’s been

Lola Buffington Burns: She was to
remember facts that broke an alibi


*%

BURNS, Elbert J., white, 65, electrocuted Kilby, Ala. (Jefferson) March 15, 1916.
(Burns! earlier murder.)
"JAIL MASTER MIND OF CRIME, = CLAIM BIRMINGHAM REAL ESTATE DEALER SET TRAP FOR DR.
GODWIN. = Birmingham, Ala., Jan. 8, 1931, = (AP) = E. J. Burns, 50, real estatesdealer
who police said with another man and a negro planned the trap into which Dr. W. H. Gode
win, 37, was lured Tuesday night and fatally wounded, was in the Jefferson county jail
tonight charged with murder, The warrant charging Burns with murder was sworn out today
by police who said he confessed framing the telephone message which brought the physi-
vian to a vanant house in E,st Thomas, a suburb, on the prestest someone there was ill
and needed medical attention. The negro, Clifford U¢lesby, is in the county hospital
recovering from pistol bullet wounds received when Dr. Godwin opened fire bn his attack-
ers. It was on evidence obtained from the negro that Burns was taken into custody. A
third man who Oglesby said he knew only as 'Charlie' is being sought ob murder charges.
Police said Burns' confession included the statement that he planned to get the physi-
cian to the house and force him to agree to disposition of 80 acres of city property in
which they both were interested, Officers said Burns admitted planning the ruse by which
the doctor was drawn to the house but denied that hé planned to kill him, They quoted
him as saying he shot in self defense after Dr. Godwin opened fire upon entering the
house, The physician died late yesterday. He was shot three times, one bullet passing
through his abdomen and the other two shattering his left arm." CLARION_LEDGER, Jack-
son, Mississippi, January 9, 1931/1:7.

wind Nit adn: Nouh '8nd g dhenit caben nut Nr LS Ue 3 WW hal g

By T. C. McVea.

Special’ Investigator for |

OFFICIAL DETECTIVE STORIES

Although the ax and sledge hammer, left,
beneath the water, his body was found

HERIFF HOLT MCDOWELL
couldn’t believe his ears. He was
in something of a daze as he re-

placed his telephone receiver back on

its hook. :
It was Sunday evening, January 17,

- 1943. Jake Prescott, a wealthy bache-
lor recluse, who had served for 20 years
as Democratic Committeeman for Jef-
ferson County, Alabama, was reported
missing from his home. Jake was a big,
genial fellow of 69 and had spent the
latter part of his life dwelling in-a
cabin nestled in the somber depths of
the vast ‘timber lands he owned on the
Warrior River below Birmingham,

‘River’folks seldom reported things of

Ret .

were supposed to hold the dead man
floating in the creek ten miles away

\ <

Known to All as “Uncle” Jake
This Wealthy

Alabama, Bachelor Recluse Was

Jefferson’ County,

Found Floating in a Creek, His Body
Mutilated. Who. Murdered Him? Why?

. this kind to the Sheriff’s office. ‘They

prefer to be let alone. Sheriff ‘Mc-
Dowell’s telephone informant had told
him, however, that Jake Prescott had
asked the Burrells, Jake’s nearest
neighbors, to help him with some work
at one of his fishing camps that morn-
ing. But when Prescott failed to show
up they had gone to his place for him.

Arriving there, the- neighbors had
found his front door swinging open
upon its hinges and a sooty oil lamp
still sputtering fitfully upon the kitchen
table. His shoes were beside a chair

‘where he had removed them the night .

before, and his old slouch hat hung on
the back of it.



Burns nodded. “I've known Charley
Odiorne for many years,” he said. “He's
liad lots of trouble and [£ used to try to
help him, in a small way. I soon found
it was a waste of time and effort. He is
a thoroughly bad man, I am afraid; one
for whom nothing can be done,”

“You don’t seem surprised that he is
the man who stole your car,” McDowell
suggested. .

“No, ['m not surprised. Since I quit
helping the boy he has felt hard toward
me and would do anything possible to
hurt me.”

“Even frame you for murder?”

“Why, no; he couldn't do that, gentle-
met. No one could frame me for murder
or even attach my name to such a crime,”
the old gentleman said, .

“Did Odiorne know Jake Prescott?”

“Not that I know about,” Burns
replied.

After a few more questions the officers
left but at the curb where their car was
parked they stopped, McDowell said,
“Something mighty funny about all this
business.” :

“There’s something more than funny,”
Deputy Rickles declared. “I saw a woman
ia there—in the next room. She passed
the doorway. You know who it was?”
The deputy answered his own question,
“It was Lola Buffington,” he said. “What
does that spell?”

McDowell stared. He said, “You sure
about that—about it being Lola Buff-
ington?”

“Of course I’m sure,” Rickles said.

“Well,” the sheriff replied, “I don’t
know what the business spells but I'm
going to find out mighty quick,” and he
strode back up to the house.

When Burns opened the door to his
ring he said, “I'd like to know what Lola
Buffington is doing here.”

“You mean Lola Burns—Mrs, E, J,
Burns,” the old man smiled, “She lives
here, Sheriff,”

McDowell's eyes
wife?” he asked,

“That is right, Sheriff.”

“Since how long?”

“Since the latter part of January,” was
the reply.

widened. “Your

McDowell’s head was buzzing with.

theories as-he turned away, The marriage
had apparently taken place shortly after

Unele Jake had mysteriously disap-
peared. The sheriff was positive that
Burns's car had been at Prescott’s place
on the night-the man was supposedly
murdered. Where did Burns fit into the
picture? Was he involved in the slaying?
Did he have some notion that the at-
tractive Lola might inherit some of
Prescott’s estate? Had he then mur-
dered his friend and prevailed upon the
innocent young woman to marry him in
order to obtain control of that estate?

McDowell's face was grim as he issued
new orders to his men, They were to
hunt for the purchaser of a heavy hatchet
or small sledge-hammer, who looked like
Ik. J. Burns, In a short time they found
where the sale had been made,

A hardware dealer admitted making
the sale of the hatchet, “It was to Mr.
Burns,” he said, “I thought about that
when your men asked me before but I
couldn’t think of Burns in connection
with crime. I’ve known him for a great
many years and he’s such a gentlemanly
old fellow.”

“He’s gentlemanly, all right,” Mc-
Dowell admitted when he was told of
this. “He's also sly, I think—and some-
thing else. A killer, it looks like.”

But could the slender, aged E J. Burns
have handled portly Uncle Jake Prescott
alone? McDowell didn’t. think so. He
did think, however, that Odiorne had
done more than dispose of Burns's old
car. He sent for the ex-convict and put
it to him squarely,

“Charley,” he said, “it looks as if your.

goose is just about cooked, Old man

Burns is laying the rap smack in your lap

and you've got a record. He hasn't.”
“But he has,” Odiorne declared. “He’s

.the fellow who was tried for murdering

Dr. Godwin a dozen years ago.. They
tried, him three times and finally con-
victed him on a manslaughter charge for
which he served a short term. I’ve never
killed anybody and you:know it.”

“Not until you killed Uncle Jake Pres-
cott,” McDowell -said, trying to think
back to the Godwin murder. He recalled
it but only vaguely. Right now he didn’t
care. He had Odiorne going, he knew,
and he worked hard on the man. Finally
the ex-convict cracked.

“Fle got me to go with him to Pres-
cott’s and he introduced me as Gray. I

don’t know why. We went out there two
or three times on some pretext or other
and I didn’t know what Burns was up
to. Then this night we went out there
and found Prescott ready for bed. Burns
said Lola was outside and wanted to see
him.

“Prescott went outside with us and
Burns was ready for him, He let him have
it with a hatchet, but it was not a square
blow and just knocked Prescott down.
Then Burns gave it to him.

“He asked me to help him then and [
did—helped to get the old man in the
turtle-back of the car, We drove away
but the old man kept groaning and Burns
stopped the car and took a knife and cut
his throat.”

They drove on again and Burns dis-
posed of the. body unassisted, Odiorne
said. He claimed to know nothing about
how the weapons had been used to
weight the body, or about the motive for
the crime beyond the face that Burns
had said they’d make a fortune from it.

“So that sews you up, Odiorne,” he
said. “Now as to Burns, can you prove
that he was with you that night?”

“We bought gasoline just after dark,”
the ex-convict declared, “He was with
me and paid for the gas. The man that
Serviced the car saw both of us.” He
gave the name and location of the service
station.

Burns later denied everything and de-
clared that he had been in bed at the
time of Uncle Jake Prescott’s death. He
gave other alibis but was held,

On July 11 he was formally arraigned
and pleaded not guilty and not guilty
because of insanity. His trial started a
few days later and lasted until July 28.

One of those he had given as an alibi.

witness was Lola Burns—Lola Buffing-
ton at the time of the murder. He at-
tempted to prove by her that he had been
in his home the night of the murder. But
when she took the stand to testify
against her husband the attractive Lola
refused to support his claim, The alibi
was broken, ;

The jury brought in a verdict of guilt

against Burns and on October 20 Judge.

John C. Morrow formally sentenced the
Judas slayer of his friend, to death. At

this writing, Odiorne has not yet been
tried,

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54

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some find while fishing: in Wottord Oil
Creek. [le had started to cross a trestle
near Port Birmingham when he saw
something hung up on one end of the
trestle. pilings. At first he thought the
object was a log but something prompted
him to look closer. Then he saw it had
arms and legs—was the bloated body of
a human being.

Frightened half out of his wits, the
man somehow got word of his find to the
proper authorities and a short time later
Sheriff McDowell with a number of his
deputies, John McFarland, technician for
the sheriff’s office, and Coroner Gip
Evans were at the trestle.

\ X JITH some difficulty the body was

pushed and dragged to the bank of

the stream. Evans said at once. “Throat’s

“been cut,” then started to say something

else but was interrupted by Dr, J. By

Vines, who had joined them. “That's old
Uncle Jake Prescott,” the doctor said.

Sheriff McDowell looked at the body
and wondered how anyone could be sure
who it was. He said as much and Dr.
Vines said, “Not a chance of me being
wrong. I have known Uncle Jake half a
lifetime.”

Uncle Jake Prescott was dead—mur-
dered. This much they now knew and the
autopsy, performed by Dr. J. A. Cunning-
ham of Birmingham, brought forth some
startling facts. Not only had Uncle Jake’s

throat been cut, he had been sorely :

beaten and his abdomen slashed. In the
stomach cavity was found a_ heavy
hatchet and a small sledge-hammer,

No attempt had been made to sew the
body up but strong canvas had been
wrapped about its middle to keep these
weights from falling out.

“I presume,” the doctor said, “that
these are the murder weapons, Also,” he
added, “the killer had a dual purpose in
putting them inside his victim’s body.
He wanted to dispose of them and he
erroneously believed they were heavy
enough to. hold Prescott’s body at the
bottom of the stream in which it was
thrown.” :

“Instead of that he has provided us
with the murder weapons and we may be
able to trace them back to him,” the
sheriff said hopefully,

He at once detailed men to this task.

- Detectives and deputies slowly covered
“every secondhand and hardware store
in - Birmingham, but their task was
complicated by the fact that the tools
were of common origin and tracing them
was almost impossible,

Burns, the real estate man, was ques-
tioned about personal enemies, Be-
lieving that his car might have been used
in the murder, it seemed likely that some-
one had tried to frame this old friend of
Prescott’s but he declared he had no
enemies,

Petrie not that I know about,” he
said,

Balked at every turn, McDowell next
redoubled his efforts to locate the ancient
Franklin. He broadcast descriptions of it
and had handbills printed and circulated
over a radius of several hundred miles.
The motor block and frame numbers
were given in case the car had been torn
down and parts sold to some wrecking
yard. Operators of such places were par-
ticularly asked to be on the alert.
> All women of whatever age, known
friends and former housekeepers of the
murdered man, were questioned and a
minute search was begun itito their lives

and the lives of any men known to be’

friendly with them.
The “pot of gold” angle was considered

anda wateh was kept for anyone trying

to dispose of gold—in cain or bullion, The

officers pinned little hope on this phase
of the investigation, however, because

a thorough search of the grounds and

house of the murdered man failed to dis-

close any signs of digging or of any other

search having been made for the gold.
There was no motive—or seemed none,

for this brutal crime, “Unless,” as Sheriff

McDowell said more than once, “every-

thing is a motive. It could be that some

fellow became angry at the old man

because his girl friend was too friendly

with him or it could be some fellow
* figured his girl friend-would inherit a lot
of dough when the old man died; or it
could be some fellow figured to buy that
timber up cheap from whoever inherited
it. It could be... .”

In disgust, he’d finally stop speculating
and push his men harder in the search for
some part of the missing Franklin or for
a trace of whoever had bought—and
used—the weapons found in the dead
man’s body.

Constant publicity regarding the old
Franklin finally brought word from
Irondale, Ala., that such a car had burned
there on Monday, Jan. 18. The salvage
had been bought by a wrecking company.

“The killer burned that car,” McDowell
surmised, “It probably was stained with
Uncle Jake’s blood. I hope part of the
car is still there.

“But this is April,” he continued, “and
three months have passed. The way scrap
iron is being used in the war effort we
haven’t got much to hope for unless we
can get a description of the driver of that
car—the fellow who sold it.”

“THEY did better than this. The chassis
of the Franklin was still at the Iron-
dale wrecking yard and the operator of
that place gave-them a fair description of
the man he'd bought the salvage from as
well as a cancelled check covering the
transaction. .

The check had been made out to
Charles Odiorne. iy

“What do you know,” McDowell said.
“Charley Odiorne! I wonder if it’s our
Charley or is this another attempt to lay
the blame on somebody else?”

Odiorne was an ex-convict, known to
all Birmingham officers... He had served
two prison sentences, one from Jeffer-
son County but was now known to be
free. :

A deputy was dispatched to the
sheriff’s office and returned to Irondale
with a photograph of the man, The
wrecking yard operator identified
Odiorne immediately as the person from
whom he had purchased the burned
Franklin.

Rushing back to Birmingham, Mc-
Dowell sent McFarland to Irondale with
all facilities for examining the chassis of
the old car for bloodstains. Other depu-
‘ties were sent out to pick up Odiorne and
had little trouble in finding him; but
getting the ex-convict to talk was
something else again.

After hours of questioning he admitted
that he had stolen the old car beeause he
wanted to make a trip. He felt that little
if any excitement would be caused by the
theft of such an antique. He didn’t know
Burns, he said, and had never heard of
Uncle Jake Prescott. ,

Accompanied, by Rickles and Tate,
McDowell drove to the Burns’s home and
told him about finding salvage from his
stolen car. “[t was stolen by a man
named Odiorne—an ex-convict,” Mc-
Dowell said. “Ever hear of him?”


about uneasily as the officers began
their examination. His heavy jaws
sagged and his narrow eyes shifted
uneasily.

“You say you drove Burns home
‘after you returned from killing Pres-

Cott, didn’t you?” Hogan began.

“Yes,” answered Odiorne.

“What time was it when you got
there?” :

“I don’t know, about seven or eight
in the morning.” :

“Well, what happened to you from
there on?” :

“Nothing much, but Burns told me
to take the car. I didn’t steal it,”
Odiorne replied.

There, again, was the conflict in the
case. Odiorne said that Burns gave
him the car. Burns insisted that it
was stolen from him. :
“How come you burned the car?”

~ Tate’ asked Odiorne.

‘ “Burns told me to. He said there was
tco much evidence in it.”

T= case was going/off in all direc-
tions. The officers didn’t know which
angle to believe. Burns and Odiorne
both contradicted each other.

“Are you telling us the truth?” Tate
asked.

“Sure Iam. Why would I die?”
“Then how does Stephens fit into
the picture?”

Odiorne glowered. “You leave
Stéphens out of this. He didn’t have
anything to do with all this.”

Odiorne seemed particularly anxious

‘to clear Stephens. The officers wonder-
oo

why.

The Deputies tried. to figure out all
the likely angles. Was it possible that
Odiorné was trying to frame Burns?
But why? Was he trying to shield
someone else? The officers wondered
who he could possibly be protecting.
Stephens? Mrs. Burns? Someone
still unknown? Or was he just trying
to alibi himself?

Later on, the Deputies faced’ each
other in the Sheriffs’ office. They knew
what they were up against. Their case
was growing flimsier every minute.
Odiorne’s statements were not enough
in themselves. He might be making
them out of malice. Perhaps he was
deeper in this thing than he said.

“I’m afraid we’re going to have to
let Burns go soon,” Sheriff McDowell

. Said. “Evidence isn’t strong enough—

and there are too many other likely
suspects. The finger has been point-
ing at Burns for too long, and you
know as well as I do that a case more
often takes a strange twist and leaves;
you with someone you thought entired
ly innocent.” *

What could the Sheriff mean?: Who
were the other suspects? The Depu-

ts ose -

ties went over them in their minds.
Perhaps someone entirely new would
come into the case.

pe Rickles came forward with a
plan.

“Let’s place Odiorne and Burns in
cells fronting each other across the
hallway. Maybe they'll do some talk-
ing. We could put microphones in their

’ cells and pick up what they say.”

THAT was a good trick that often

worked. It might not lead them any=
where, but there was a chance that it
could help their case along. The of-
ficers were still not satisfied with Burns
and Odiorne alone. There were too
many complications: How Burns and
Odiorne got to know each other; why
Odiorne would want to implicate
Burns. :

But the plan was worth trying. So
the officers obtained a microphone and
proceeded to the cells to be occupied
by their prisoners.

The officers surveyed the barren
cells. With only a cot and a chair be-
fore them they saw no opportunity to
hide the instrument.

“Why in the hell don’t they fix a
place to put these things when they
build a jail?”

.. “Well, we'll fix a place,” Dewey
Rickles stated hopefully, tilting the
iron cot back. :

The officers decided that any place
around the cot was too obvious. The
walls were too solid to be chiseled into
and covered successfully.

“I’ve got it!” snapped Tate. “That
guy smokes cigarettes. We'll fix him
bs @ smoking stand and bolt it to the

oor.”

Two small smoking stands were made
up with mikes enclosed in them and
were placed in the cells. The prison-
ers were transferred and for the first

time were given an opportunity to con- .

front each other. The officers sat back
for an evening of listening. ;

ONCE the prisoners were left alone,

Odiorne became’ talkative but
Burns remained stoic. He once snapped
at Odiorne, saying: “Don’t do any talk-
ing. Even the walls have ears some-
times.” :

As the evening wore on the officers
began to get impatient. Tate ribbed
Dewey Rickles for sitting around on
the County’s time, and Chief Hogan
walked the floor like a caged lion.

were beginning to look hope-
less. Were they just wasting their time
while the real killer’s tracks were get-

.ting cold? Were they holding inno-

cent men? Perhaps the real clews lay
somewhere else.
Suddenly Burns’ voice came over

their amplifier in a harsh whisper.

“Listen, Charlie,” he said in a sort
of hissing whisper. “I’m going to write
you a note on this roll of paper in my
wash room. I'll throw it over to you
and you can read it and destroy it:”

“Okay, Mr. Burns,” Odiorne whis-
pered back. : :

-Warden Pinson of the county jail was
quickly summoned by the officers ‘and
instructed to enter the cell block the
moment the paper was thrown. Pinson
stationed himself near the entrance
and waited in readiness. What would
the note say? Who would it implicate?
Anyone? Someone they never sus-
pected? .Perhaps it wouldn’t tell them
anything.

In a few moments Burns’ voice came
over the amplifier again in a hoarse

hisper.

Ww 3
“Charlie, here it comes!” he said.

Pinson opened the door quickly and -

dashed down the hallway. The paper
had been thrown, but the Warden.
grabbed it.

Burns gripped the bars in his cell
with white knuckles. His face became
a death mask, and he stood speechless.
Odiorne turned and walked heavily to
the far end of his cell.

WARDEN PINSON returned to the
officers with his prize, and over
their amplifier came the sound of muf-
fled sobs: from Burns’ cell. a

“That’s the worst mistake I have
made since this thing happened,
Charlie!” he cried.

The officers spread the paper out and
read:

Charlie, you are talking -too
much. A certain fellow heard in
a restaurant that you had talked
too much and sent me word. They
haven't got anything on us. They
don’t know anything, so for God’s
sake, don’t talk! -

*This note ties in with a letter Burns

' wrote to his brother this morning,”

Chief Hogan commented. “He asked
his brother to help him get out of jail,
saying that he could beat this case, and
there was $50,000 in it for him. The
Warden’s office stopped it.”

“Well,” said the weary Tate, “the
Solicitor should have enough evidence

. now to make a conviction stick.”

“And I believe he has,” answered
Chief Hogan. “You, boys, have done a
fine job. Damn, but I’d hate to have
you fellows after me!” the Chief said.

Sheriff Holt McDowell received the
final report from his deputies thirty
days after they had been assigned to
the case. After a checkup of their’
findings, the complete file was sub-
mitted to the Solicitor’s office.

Special Prosecutors, Burgin Hawkins
and Hollis Parrish went to trial with
their well-prepared evidence before
Judge John C. Morrow on July 19,
1943.

Burns pleaded not guilty. Then
Prosecutor Hawkins placed Mrs. Burns
on the stand. She said that she re-
called waking up in the middle of the
night of the 16th and she said that she
remembered that Burns was not in the
house at the time. This was really
the thing that clinched the case and:
broke Burns’ alibi. .

During the trial it became clear that
Burns thought he was playing it pretty
shrewd. He knew that Lola Buffington
had been friendly with Prescott. Even
though she was Burns’ housekeeper at
the time, Burns thought she might get
a change of heart and testify against
him. So he talked her into hasty mar-
riage—only a few days after he killed
Prescott—thinking that a wife can’t be
compelled to testify against her hus-
band. >

Also, during the trial diligent Depu-
ty Tate testified that he located the
hardware store that sold the death ax
to Burns. The owner of the store iden-.
tified it. Further evidence was pro-
duced by Deputy Rickels who said:

“There was a good reason why Burns
and Odiorne were so friendly.. Burns
met Odiorne while serving a term in
the State Penitentiary. He’d been i
convicted on a charge of manslaughter
in the first degree. ~He got away easy
on that one. Well, it happened that.
Charlie Odiorne was serving a term in
the same prison—and at the same time:
They became good friends there.”

BURNS did not take the stand in his

own defense. The case went to the
jury and a verdict of guilty was re-
turned after one hour and fifteen min- !
utes of deliberation. :

A subsequent petition for a new trial
based on technicalities was filed by his
attorney but was denied by the court.

On October 29, 1943, E. J. Burns |
was scheduled to go to the electric
chair at Kilby Prison. A stay of execu-
tion was granted, pending an appeal
to the Supreme Court.

“Meanwhile, Charles Odiorne 1s await-
ing trial on an indictment of first de-
gree murder. Even though Odiorne
gave evidence to the police which con-
victed Burns, no promises of leniency
were made him. His future will be
determined by a jury of his peers.

George Stephens was cleared of any
suspicion. ~

The name George Stephens is fic-
titious in order to protect an innocent
man.


peated —

3

Se

Or had he refused to tell where the gold
was and the robber or robbers had kid-
naped him in order to torture him and
Secure this information in safer sur-
roundings ? .

The sheriff didn’t know and he learned
little more of interest. Uncle Jake Pres-
cott had recently remarked that a
dangerous man was visiting him. He
hadn’t explained this and no one knew
what kind of danger he meant and no
one knew who the man was. He had also
said that “a feller’s been tryin’ to get me
to sell him a thousand acres of timber but
I ain’t sellin’, Not now, I’m not.”

Could this man have done away with :

Everything was conjecture and Mc-
Dowell knew he had to have more to go

all residents of the district in a vague

at the box. He seemed in his usual good
nothing about
leaving, for town or any place else,

man by the name of Burns—an elderly
man from Birmingham. He was a friend
of Uncle Jake’s, she thought. She also
thought he was a real estate dealer of

' On: the following day McDowell 1o-
cated E, J, Burns, a retired real estate
man.

out to Prescott’s frequently, he said,

“You were out there Saturday night?”
McDowell asked.

Burns shook his head. He was a tall,
gray-haired man of considerable dignity.
“I haven’t seen Jake for quite a spell,” he
said, :

“Your car seems to have been there
Saturday night,” the sheriff told him.

“That's Possible,”

“No, it certainly wouldn’t,” McDowell
said. “On the other hand, it’s not reason-
able for anyone to Steal a car that old:
It couldn’t be worth ten dollars.”

. “Aside from the tires, you're right,”

urns said. “At the same time, my car_

was stolen.”

“Did you report it?” :

“I certainly did. I went to police head-
quarters and told them about it. A de-
tective named McKinney took the report
and said he’d have the matter. looked
into,”

Burns looked keenly at the sheriff. He
Said, “What is this, anyhow? Has some-
thing happened to Jake?”

“That’s what I’m trying to find out,”
McDowell said and told what little he
knew about the situation. Burns shook
his head and said it sounded bad.

“Jake is as regular as a good watch,”
he said, “Unless somebody's done away
with him or he’s off some place hurt,

he’d be home. I don’t like the sound of
things,”

Detective D. H. McKinney told Mc-
Dowell that Burns had reported the theft
of his old Franklin that Saturday after-
noon. “And I wondered about it,” he
said. “Who’d want to steal an old wreck
like that?”

“That’s what J asked Burns,” the
sheriff said; but he had an idea: the old

cott might in that way fall upon the
doorstep of E, J. Burns, This, at least,
was an idea worth looking into,

Lola Buffington Proved to be an un-
usually attractive young woman and
was anxious to help the sheriff in his
search for the missing Prescott. There
was little she could offer, however. She
had not seen Uncle Jake for some time,
she said. She had just heard of his dis-
appearance and was extremely upset
about it. He was the best friend she had
ever had, 7

McDowell had-to be content with this

ut only for a little while. Deputies Tate
and Rickles, stil] investigating and help-
ing to search the Prescott neighborhood,
found a man who said that the
“dangerous man” Uncle Jake had
mentioned was known to him as Gray.

“And, Sheriff,” Tate said, “Lola Buff-
ington’s name used to be Gray. She
married a man named Buffington a few
years back and. , , ,”

“And I’m going to talk to that young
lady again,” the sheriff interrupted. “It

looks as if she didn’t tell me everything,”
Lola Buffington, however, said that she

didn’t know a thing about anyone visiting ’

Uncle Jake. She hadn’t known that the
sheriff was interested in her maiden

‘name. And if a man named Gray had been

visiting Prescott it was nobody whom
she knew,

“You don't have any brothers or a°

father?”

wished to cause her trouble. There was.

the utmost sincerity in her’ voice.

owned had been willed to his brother, :
questioned

added that no one could have profited by
Jake’s death except himself. And the
missing man had no known enemies, he
concluded,

Whether he had or not, Uncle Jake

rescott could not be found, dead or
alive. The search for him or his body
went on for weeks without results,

At the same time Police of the city and
sheriff’s deputies kept up a constant
search for E. J. Burns's missing Franklin
coupe—with the same results. It could
not be found - even though wrecking
yards were combed.

On February 1], a man made a grue-

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There was a triumphant smile on
McFarland’s face. “Yes, he, does re-

member. - The purchaser was E.. Je»

Burns!”

sale, he told McFarland, because
the axe had a nick in the blade and
he hadn’t wanted to sell it. Burns
had insisted, however, that the instru-
ment. was good enough for his pur-
pose, Bah

There was no longer any doubt in
the sheriff's I
was mixed up in Prescott’s slaying
with Odiorne. He figured, though,
that Burns, who had been highly suc-
cessful in escaping a heavy. sentence
in the Godwin case, would never ad-
mit his guilt. : - 4

.Perhaps Odiorne would, though, if
there was enough evidence to serve
as an opening: wedge. Accordingly,
McFarland and-his crew went to work
on the Franklin’s chassis, soon found
definite traces of human blood on one
axie. :

McDowell next set about trying to
-find witnesses who had seen Burns
and Odiorne together after the time
Burns swore his car was stolen. This
took considerable work and much
time, but McDowell and his men were
finally successful. They found a wit-
ness who definitely placed Burns and

Odiorne in the Franklin together late -

Saturday and at a filling station in

| the vicinity of Prescott’s home!

But what about Burns’ alibi?

. McDowell, Rickles and Tate went
at once to Burns’ home and demanded
that he prove his alibi. Burns nodded
and left the room. When he returned
McDowell was handed a_ jolt. For
Burns’ ‘wife was none other than the
lovely Lola Buffington!

RS. BURNS, however, refused to
say anything when questioned

about her husband’s movements on.

the night of January 16th. Her only
statement was: “I’ll talk in court,
if it becomes necessary, and I'll tell
the truth. But not until then.”

Burns was immediately taken in

custody and Mrs. Burns was taken in
protective custody pending further
investigation. The sheriff then looked
into the matter of Burns’ marriage to
Lola Buffingtcn and discovered that
the ceremony had taken place after
the night of January 16th.

Prior to the marriage the . young
woman had kept house for the elderly
promoter. .

To the sheriff this meant_only one

thing: Burns had married the young .

woman because he knew that in the
State of Alabama a man’s wife is not
forced to testify against him. He
wanted to make certain that his bogus
alibi was not exploded.

Knowing that Burns would never

admit anything, but was probably the:

brains of the entire bizarre plot, Mc-
Dowell concentrated on Charles Odi-
orne for a confession. The questioning
took several days. But when Odiorne
was finally convinced that the State
had an excellent case against both
Burns and himself, he broke down
and told the whole story.

“I met Jake through Burns, who
‘called me Mr. Gray,” Odiorne began.
Lola’s guardian and that he wanted
Jake to sign some papers so he could

F|sort of fellow named Jacob Krantz ~
is the proprietor:” Le Se eee
}:° “I don’t suppose Krantz remembers
| who bought the axe, though,” Mc-
}, Dowell said. eames ey Bree

-4to her. Whether or not this was true,

. the car that Burns grabbed the axe

mind but that Burns -

-tale, however. He related how Burns

“beat up” by three or four Jefferson

“Burns told me that Prescott was’

ges aut Ae Rare he eng a ate
sell some timber land which belonged _
we went out there and Prescott re
fused to sign any papers.”) 2%.)
“ Odiorne told ‘how Burns lure es
Prescott-into the Franklin by telling “225
him that Lola was parked out on the.
highway and wanted to talk to him.
When they didn’t find Lola, however,
Prescott insisted on returning home. ar
And it was when he had alighted from.

potyare Prescott in the back of the
Cad. 6. pales erly "yt SA a aga
- ‘According to Odiorne, Prescott had
tried to get away. -Burns swung at —
him again. This time, he fell down, ~
unconscious. pie ree Soaked
“We loaded him in the trunk and
drove off,” Odiorne stated. “But Jake
was still making noises that we could
hear even above the sound of that eRe.
motor. So Burns stopped, got out and “ape
cut Jake’s throat.” ruta
Odiorne declared that he did not —:-
know when Burns put the weapons
inside the body, but did see him push =~. }
the remains of Jake Prescott into the [73

- Warrior River. A:

That wasn’t the end of Odiorne’s ~

had tried to run him down with the ve
car, but had been unsuccessful. Burns ~
had then reminded Odiorne that he
could beat another murder rap and —
he had better -keep quiet about the ~
crime. Mises pi Shi Se
Odiorne knew enough about Burns’
past to be convinced, and had not - ~
gone to the police. RT eee ea Se ee
Odiorne’s confession was duly writ- _.
ten down and properly signed. On -
July 11th, Burns was arraigned. He
pleaded not guilty”“by reason of in-
Sanity, and was indicted by the grand
jury. While waiting for trial, he im-
plicated himself still further by writ- ~
ing letters to his wife and to Odiorne
in which he incriminated himself
and warned them quite emphatically
against talking. re

ATE in July, Burns was put on
trial. Horace Alford was his de- .
fense lawyer. Assistant Solicitor Bur- —_-
gin Hawkins prosecuted the State’scase. *
- Odiorne was the State’s principai
‘witness. And the lovely Mrs. Burns
exploded Burns’ alibi for keeps by ~_
declaring that he was not at his Eng- ~~
lish Village home the night Jake |
Prescott was murdered. = *
A guilty verdict was brought in by .
the jury on July 28th. The death sen-
tence was recommended. oe RASeS
The time of the murder was Janu- ~
ary 16th, 1943, and during the next -
couple of years Burns was the recip-
ient of thirteen reprieves granted a
by the governor of Alabama. The’ ©
governor wanted to be thoroughly .~
convinced of the defendant’s guilt
before he signed the necessary ~
execution papers. Burns had told ~
Governor Sparks that he had been :

County deputies prior to his trial,
and his defense lawyers insisted that
Burns was convicted on perjured
testimony. given by Odiorne. “aid
Final denial of executive clemency ~
followed a three-hour hearing, and ~
on March 15th; 1946, the 65-year-old. |
Burns was executed in the electric
hair at Kirby Prison. ~* S =
Charles Odiorne was awaiting trial “+
“as CRIME DETECTIVE went to press. — :

‘Eprror’s Nore: Names of Will John-—
son, Calvin Olsen and Maggie Connor’
are fictitious, to protect the identity

of innocent persons. .».%

—

SSE

45000 Ala

62 So, 673, 674. FHL
[8] ..The primary objects of the testa-

Seale Ries Se Ee Oe

ys E
Durican v. De Yampert et al., 182 Ala.:528,

tor’s bounty, as clearly appeared, were his

awife and his five daughters, all of whom

are still in life and are his heirs at law.
The manifest intent of the testator was to
yest in his wife a limited estate for life or-
during widowhood, to her full enjoyment,
with a limited power of disposal for re-
investment or payment of testator’s debts,
with vested remainder to his five daughters,
in the absence of other children born to
testator and his wife, “White et ah we. Fows.
Nee, HS Alin, DOR, WS Saat WH. Wiser e&
st. @, Ward, 224 Ala 147, 18S So. We, The
contingency in respect to the death of The
named devisees connotes a testamentary in-
tent:to vest the remainder in the named de-
visees and to direct the descent accord-'
ng to the law of descent and distribution.
So that the complainants named in the bill,
all. of whom are: sui juris, own and hold
the entire title to said property and have:

the right to sell and convey the same; *

and, so long as they jointly agree, to dis-
pose of the proceeds thereof as they see fits

The decree of the circuit court, therefore,
which concludes to this effect, is dite to he
affirmed. It is so ordered,

Afirmal,

GARDNER, © Ty and THOMAS, POSS

TER, LIVINGSTON and SIMPSON,

%
Bh, careers,

SEE YS n“ Yara Saas si)
STARS A, he eK EE, DAV We

3 hy .
WH LOANS,

SONG sis
ah Ue
A

Day Nyt NN, a Ny

BURNS v. STATE.
‘6-Div. 186.

June 15,1944.

fiidury 664)! e5 ee ost ud welche Sepesys
* A venire drawn on J 26 for
cee | June 26, 1943;
_ in Jefferson ‘circuit court during eek
0 July 19, 1943,-would not be quashed on
ground that the term ended during the ‘in-
-terim, since terms ‘of ‘court’ have‘! been

_ Rehearing ‘Denied Nov. 2, pga

19 SOUTHERN: REPOKLER, 20: SHRINS

> posed. enactment. |

abolished in Alabama. Code 1940, Tit. 18 |

§ 114; “Fit. 30, § 63; Tit. 62, § 196 et seq,
2, Jury C958 co) .
The general law as set forth in statute
relating to order: fora special venire had
no application in Jefferson county, because
a special procedure has been provided: for
Jefferson county. : Code 1940, Tit. 13, §114;
Tit, 30, § 63; Tit. 62, § 196 et sea. ©

3, Jury C116

'\ "Pherstatite providing that no objec:
tion can be ‘taken to any wenire except for
fraud in drawing or semmoning of jurors
te ARIE HUTS BE PREKEID the quashin:
ONTOS FOr Here RES, at

1940, Tis. 30, $46. .
h

4. duty CPi 6 fi |
“O° A’ yenire could not be quashed where
no fraud was alleged. Code 1940, Tit. 30,
SAGs oe TR eg

5, Statutes C>8la(I)) 8)

—‘In-determining whether an act is local
or general, so far as it relates to constili
tional provisions’ governing notice "ai

- proof in case of adoption of local legists
tion, the at must be considered as @ who!
Const, 1901, § 106,

® Blatuter Gea gc) :

The Cade seetione erboied A Oh:
ete W vf the Urwie at a Pak ie :
sqouek WONKERA RA AYN AN CNH YO
¥ O if s iN + Les, + :?

My ei ih euch bic " :
SAVER ANN BAVARIA BARELY N
oy ‘ \ Ace ke tie, ae S|
RA
> y

%

AY AL Ae
¥ eh a . %

A Bahri & N ly 4

The piirpove oF Bakeana
et pose OF Cdiistittiawal provis
aos notice and proof in ae ara,
5 Sil bo local legislation is the prevent
ee eception of those immediately affeci«:
y the local | foate
have an oppértunity to
StS melanie ‘Const. 1901, §:106,
8. Statutes G=145; .. Reps Wake
SV It was! riot aes : ae ae Bs ey ce
ae Paine rte ras" proper to embrace a «
Spe tons oe general Jaws. with focal él
r cation ina Code ‘which «was: prima i]
evoted td codification of reneral law wi’)

ee neh pe
As ee application. |: Conists 1901, §s

*

pts

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his head,” he’ informed them, “That _

didn’t surprise me any. But finding
the murder weapons inside his body
did surprise me!” ae
McDowell whistled sharply. “I wish
you’d explain that,” he said. ~

The doctor nodded. “I found a small :

hand axe and a hammer inside the
abdominal cavity,” he explained.
“The opening had been held together
by strips of overall material which
had been torn off the victim’s cloth-

ing.’

-Cunningham went into another.

room and came back with the ham-
mer and the small axe. “Here they
are,” he said. , :

McDowell handled the weapons
gingerly. “They made good weights
to hold his body under water, and
the killer got rid of them in the bar-
gain.” -

The doctor nodded.
figured by the time the corpse rose
to the surface he’d have his trail
well covered.” *

“How long do you think he’s been
in the water?” the sheriff asked.

“About a month, more or less,” the
doctor replied. :

McDowell figured, as: did Cunning-
ham, that Prescott had been mur-
dered and thrown in the Warrior
River the night he disappeared.

The sheriff took the hammer and
the small axe to John McFarland
and asked him to find out who had
purchased them.

The expert took on the assignment, -

but was doubtful as to the outcome.
“Nearly every hardware store in
town carried these items,” he said:
“It will be like looking for a needle
in a haystack.”

The sheriff’s next move was to
organize his men for an intensive
rir He assigned one detail to
get a line on Burns’ old Franklin
coupe. “I believe Prescott’s murderer
went up the lane in Burns’ car,” he
declared. —

“But anyone could have stolen i<,”
the squad leader objected. “The auto
theft bureau had turned Birmingham
upside down and they can’t find a
trace of it. can we succeed

“Maybe the experts didn’t look in
the right places,” the sheriff said
drily. “It’s obvious that the car wasn’t
abandoned anywhere, nor was it sold

“Then what happened to it?” asked
one of the officers.

“My guess is that it was sold for
junk—a piece at a time. If the killer
did that, he thought he was being
clever. But he wasn’t so clever after
all. Franklins aren’t as ¢ommon as
Fords, especially the 1930 models.”

FIRED with the sheriff’s enthusi-
asm, .the detaj

combing through
trace of Burns’ old Franklin. _The

would help him.
All he learned, however, was that
Will Johnson had moved out of the

“He probably

_ plentiful these days. I could have just

-ther about Jake’s “pot of gold,”

SP oe . , A aie &

tried ‘again on the Gray angle. He

asked one man who had admitted
seeing Gray several times for a full
description. > i

“Oh; he’s a big guy about middle

age,” the man stated. “All I can tell
you about him is that he had a hard-
looking face, as if he’d been over the

jumps in life—if you get what I .

mean.”
McDowell mulled Over this infor-

mation thoughtfully. “Did he look .

“That’s it! He looked exactly like the
hard faces printed on the FBI bul-
letins in the post office.” _- ee

amougs he had a hunch that Gray
was not the mysterious stranger’s cor-
rect name, McDowell assigned a man-
to look up records of ex-convicts in

an effort to get a line on him. Then he

drove to the community where Will
Johnson had moved and asked him
about his sudden transition from
Prescott’s neighborhood. eae

“After what happened to Jake, that
Place gave me the creeps,” Johnson
maintained, “My kids were afraid to

go to the well at night. My wife, too. .

So we decided to move.” 2
Johnson looked at him a@ moment

as if puzzled over his meaning. Then

he said, “If you think I had anything

. to do with Jake’s murder—’

e’ve got to check everything and.
everybody,” the sheriff reminded him.
“Your moving away so quick got the
neighbors suspicious,” pea

The man nodded as if he under-
stood, then proceeded to. give Mc-

well a complete account of his ac-
tivities on the night Jake Prescott
disappeared. His wife and family and
a couple of friends backed him up in
his statement. It was soon evident
that Johnson couldn’t. possibly have
had a hand in Prescott’s Slaying.

Johnson said: “You might ask Mag- °*!

- Connor about her fight with Uncle
ake.” :

McDowell Snapped to attention.
“Who's Maggie Connor? And what did

she and Jake fight about?”
“You'd better ask Maggie,” John-

son replied. “T’ll tell you how to get —

and questioned her intensively. The
woman readily admitted quarrelling,

were a couple of women or so every
meal. We had quite a Set-to about
it, and. I left.” Mart

“And you didn’t threaten Jake?”
McDowell persisted.

“Why should I threaten him?” the ~<¢

woman demanded. “Jobs like that are

walked out.”

McDowell knew that this was true. .:

Just the Same, he asked her for her

alibi for the night of January: 16th - = ?
and he wasn’t entirely satisfied about ~

her until it checked out air-tight.
Since he could learn nothin

Dowell checked the angle of financial

gain. He soon learned that Prescott. ts

had willed his entire holdings to his
brother, i

big-shot ti
m.”

= You mea)

when Jake «
come into t
the handling
*- “And who
- the sheriff 4
“Tt wouldn

“<man said lar

McDowell

~- to Olsen an

man’s state

~.. denied the-w

--he offered a?
disappeared,
~~ covered tha’

“it anywhere.

OWEVE!

i there cc
pected Jake

his fortune 1

‘A started chec

hence and

“pecially wom

; ie he lea
seemed to h
the rete bi
itself,

‘Lola Buffin
see. had rec
Birmingham >

- ary 17th, ask:
Gray -had_ h
thinking his
hurt, or even
however, she
ently happy.
had not sent
origin of it w
. Check as he
make nothin;
concentrated
angles. Durix
hundreds of
* vestigated an:
just when
to be at a sti
signed to tra
a report.

0" “We “founc

Franklin on t

~ ing company,

“ stated. “The }
burned out i

At any_rate,
Te 4 pany offici

“And who

ie ~“*McDowell asi

-s--The deputy
out of ae)
- McDowell. i

on the Gray angle. He
man who. had admitted
’ Several times for a full.

a big guy about middle
an stated. “All

Nn

mulled ov
ightfully.

“~t

nl ae :
SS was startled at first.

and thought, he nodded.

looked exactly like the

rinted on the
post office.”
had a hunch that Gray
anger’s cor-
well assigned a man
cords of ex-convicts in
+t a line on him. Then he
community where Will
moved and asked him
idden . trans
qhborhood.
* happened to Jake, that

vo

e

1ysterious str

c

he’d b

y.

‘e the creeps,” Johnson

My kids were afraid to

wat night. My wife, too.
| to move.” :

ed at him a moment

over his meaning. Then
‘u think I had anything
xe’s murder—”

0 check everything and
e sheriff reminded him.

icious,”

away so quick got the

»dded as if he under-

‘oceeded to. give Mc-

lete account of his ac-
t Jake Prescott

is ‘and family and

‘] acked him up in
It was soon evident
‘ouldn’t. Possibly have
Prescott’s Slaying.
“You might ask Mag-

it her fight with Uncle

lapped to attention.
ght about?”

' ask Maggie,” John-
1 tell you how to get

nson’s directions, Mc-
sated Maggie Connor
her intensively. The
oe quarrelling
ott.

% house for him,” she
2 kept dragging in
mds of his for meals,
and told him so. He
uit having so much
st thing I knew there
, women or so every
juite a set-to about

vit threaten Jake?”
ed.

_ threaten him?” the
. “Jobs like that are
ys. I could -have just

7ethat this was true.
2 asked her for her
ot of January- 16th
irelw catisfied about
‘e : air-tight.

] nothing fur-

is the motive for | ~

I can tel]
hat he had a hard-

een over the
il 4. you get what I
er this infor-

“Did he look .
be an ex-convict?” he ‘

FBI bul-

ition from

-onnor? And what did

Es

e; 7 o ne i ae

tht sS TS

oF

my en &

ses 4
eB
eee
zs

rf

a

i “cutting Prescott’s throat ‘and stuffing

the murder weapons inside his body?
Had someone other than his brother
expected to be named in the elderly
bachelor’s will?

And what about the extortionist
the neighbors had mentioned? On
what basis had he been trying to get
money from Prescott? Was there a
woman mixed up in that deal?

McDowell canvassed Prescott’s
neighbors again with the / questions
which raced through his mind. And
one neighbor finally came through
with the statement that Maybe some
of Jake’s friends did expect to be
mentioned in his will.

Although this was what the sheriff
had been looking for, he feigned sur-
prise and asked sharply; “Who, for
instance, expected anything like
that?” ;

“I heard a guy named Calvin Olsen
talking about Jake’s timber. In fact,
Olsen was trying to make a deal with
: big-shot timberman from Birming-
am.”’ ’ : Fi

“You mean Olsen is the one who
expected to be mentioned?”

The man shook his head. “Olsen
told this big-shot timberman that
when Jake died his girl friend would
come into the land and he’d have
the handling of the timber.”

“And who is Olsen’s girl “friend?”
the sheriff demanded. _ |

“I wouldn’t know about that,” the
man said lamely.

McDowell lost no time in getting
to Olsen and taxing him with the
man’s. statement. Olson promptly
denied the whole thing. Not only that,
he offered an alibi for the night Jake
disappeared, and the sheriff soon dis-
covered that there wasn’t a hole in
it anywhere,

HA OVEVER, the sheriff still felt
there could be someone who ex-
pected Jake Prescott to leave part of
his fortune to him or to her. So he
started checking all of Prescott’s
friends and acquaintances again, es-
pecially women friends. And in so do-

, ing, he learned something which

seemed to have no connection with
the crime, but which was curious in

- itself,

Lola Buffington’s brother in Tennes-
see. had received a telegram from
Birmingham on Sunday night, Janu-

_ ary 17th, asking him to come at once.

Gray had hurried to Birmingham,
thinking his sister might be bad]
hurt, or even dead. When he arrive j
however, she was well and appar-
ently happy. Also, Lola Buffington
had not sent the telegram, and the
origin of it was never learned. :
Check as he would, McDowell could
make nothing of the incident, so he
concentrated on other and better
angles. During the next two months
hundreds of tips and leads were in-

vestigated and proved to be worthless.

Just when“the investigation seemed
to be at a stand still, the officers as-
signed to trace Burns’ old car made
a report. :

_“We found the chassis of that
Franklin on the lot of the car wreck-
ing company,” the officer in charge
stated. “The machine caught fire and
burned out in the Irondale section.

_At any rate, that’s where the com-
' pany officials said they picked it up.”

“And who sold them this chassis?”

“McDowell asked eagerly.

The deputy pulled a slip of paper
out of his pocket and handed it to
McDowell. The sheriff observed that
the paper was a canceled check and

‘orne about the burned chassis.

had been written out payable to one
Charles Odiorne. “That’s the com-
pany’s payment for the chassis,” the
deputy explained... ba Paes

“Did the wrecking company officials
say when they picked up the chassis?”
asked the sheriff, Bae lau tn
"..“Yes, it -was Monday, January
eighteenth,” the deputy replied,

That meant, the sheriff thought
with a jolt, that no time had been
lost in disposing
he thought about that name, Charles
Odiorne. He had heard the name be-
fore. Seconds later, he remembered
all about it. Odiorne was a former
convict and had served a couple of
short terms in prison. os

-He ordered the man’s immediate
arrest. Odiorne was brought to the
sheriff’s office a short time later. Mc-
Dowell was quick to note the scowl-
ing, “hard” expression on the former
convict’s face. Was this the man. who

had visited Jake Prescott prior to his .

death and
Gray?
McDowell started

had given the name of

questioning Odi-
The
man was ominously silent, refusing
to talk at all.

“We've got to get other links be-
tween Odiorne and Burns’ car,” Mc-
Dowell told his deputies after Odiorne
had been placed in a cell. “Maybe we
can find someone who saw Odiorne
driving the car,” ;

Accordingly, the officers started

digging for evidence, But what they

learned was beyond their expecta-
tions. They found out that E. J. Burns
and Charles Odiorne were well ac-
quainted and had been seen together
on several occasions.

Instead of going to Burns with this
information, however, McDowell re-
doubled his efforts to get enough evi-
dence to make Odiorne talk. He and
his deputies began to backtrack on
Odiorne’s movements, learned that
he had been seen in the Irondale
vicinity on the day the Franklin was
burned. But that wasn’t all. He was
seen in the company of a tall, white-
haired man who answered the de-
scription of E. J. Burns.

Just then McDowell thought of a
remark made by one of Prescott’s
neighbors. He had said that Jake
Prescott refused to tell him the name
of the man who had been threaten-
ing him, that no one would believe
it. This obviously meant that the man
was well known and moved in re-
spectable circles. Was this man E. J.
Burns?

Prescott, according to the neighbor,
also had said this man had already
beat one murder rap and wouldn’t
be above bumping him off. McDowell
began searching through police files,
soon found something which looked
significant. Burns had been tried
three times during the early 1930’s
for the murder of Dr. W: H. Godwin,
Republic Steel company doctor who
was fatally wounded by gunshot on
the night of January 6, 1931.‘ The first
two trials had brought convictions
which had been reversed in the su-
preme court. The third trial had
netted Burns a brief term in prison
for manslaughter.

It was during this prison term that
Burns _ became acquainted with
Charles Odiorne. :

This information heightened Mc-
Dowell’s already keen interest. And
at this time ony ee reported
- nm the murder weapons, :
ba Found the store where the hand
axe was sold,” he said. . “A nleasant

© ‘

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by the judg.
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pes iking for
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not violated
gtion of the
tem amount,
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SAE O° BURNS ¥STATE | PEO 2 “Ala, 457

19 So. 24 460

19} We ‘oaetads that he Statutes pro-
viding for the jury system of Jefferson
County in capital cases do not infringe upon
the 14th Amendment ‘to the Constitution af

the United. States.

- There was no error. in overruling the mo-
tion to quash the venire.

IL; At the close of the State’s case, the
defendant moved to, exclude the evidence.

_ The court overruled the motion. The court.

also refused the affirmative charge request-
ed by the defendant. hese rulings are
assigned as error’ on the theory that there
was not sufficient corroborating evidence, as
required by §.307, Title 15, Code of 1940,
which is as follows: “A conviction of fel-
ony cannot be had ‘on the testimony of an
accomplice, unless: corroborated by other
evidence tending to: connect the defendant
with the commission of the offense; and
such corroborative evidence, if it merely
shows the'commission of the offense or the

circumstances thereof, is not sufficient.”

- The State’s case was based on the testi-

mony of Charlie Odiorne, an ex-convict,

who, by his own testimony, was an admitted

‘accomplice of the defendant, and who was
also indicted for the murder of Jake Pres-
cott. It therefore is necessary to examine

the testimony of Charlie Odiorne and the

testimony offered in corroboration thereof

to see if the. requirements of the statute

have been met.

It is not prattipable: t to set out the testi-
mony in. all its detail. But in substance,
the testimony of. Charlie Odiorne showed
that he went.with the defendant on the night
of January 16, 1943, to the home of Jake

Prescott, which is on the road that turns off
to the left from the road from Maxine to
‘Bluff Creek‘ in Jefferson’ County. There
Jake Prescott: was lured outside his house,

partly dressed, and carried in the defend-

ant’s car to a place in the woods, where he
‘was killed by' the defendant with blows on

the head with a hatchet and by cutting his
throat; that the body was carried in the
back of the defendant’s car to Short Creck,
where witness handed the defendant the

hatchet’ with which deceased had been killed

and a sledge hammer ; that after the hatchet
and hammer had béen stuck in the abdomen
of the deceased ‘in an opening in the abdo-
men made with a‘knife, and the abdomen
wrapped with the cloth that’ formed one leg
of the overalls’ ‘which the deceased was
wearing, the’ defendant pushed the body out |
into the creek’ with a stick; that witness had
19 SO. 2d—29%4

been driven to the scene of the c crime by the
defendant in the defendant’s 1930 Franklin
car; that on the way they had stopped at
a filling station at Avenue F and about 7th
or 8th Street, next to the’ Standard’ Oil
plant, and got some gas and defendant was
cursing because he was having trouble in
getting off the cap which locked the -gas
tank, and became further exasperated when
the negro attendant tried to put water. into
the car, which was air-cooled; that the day
before they had worked.on the car, in-
stalling a new settling bulh;. and then they
had gone to Sears-Roebuck where the de-
fendant made a claim because the plug the
defendant had bought from them had: broken
the settling bulb; that the car of the defend-
ant had a rumble seat in the rear and the
floor of the back of the car was out with the
exception of two boards; that the next
morning (Sunday) the defendant drove his
car to where witness was staying and turned
the car over to witness; that the night be-
fore defendant had told witness that he had
to make way with the car; ‘that witness
drove the car around Sunday and’on Mon-
day morning defendant asked him if he had
disposed of the car, saying that he (defend-
ant) had reported it stolen, that the police
had arrested Lola (wife of the defendant).
and were looking for a heavy-set man who
had been running around with defendant;
that witness thereupon drove the car out in
the neighborhood of Gate City and after
driving it into a ditch in the woods, burned

‘the car up; that he thereupon ’phoned the

defendant and told him where to get off
the bus in the neighborhood. where the.car
was burned, so defendant. could meet. him;
that théreupings defendant ..came out; that
there was blood onthe right-hand running
board and on the axle housing below where
the boards were out in the floor of the rum-

‘ble seat; that he sold the burned car and

received a check for. $15, which he cashed
at a filling station; that on the night of
Saturday, January 16th, they passed: two or
three women on the road just before they
turned off to Jake Prescott’s house; that on
the night Jake Prescott was murdered, de-

.fendant told witness that there.was a man

from New York and the. deal for Lola’s

‘timber had to be closed over; the week-end;

that the previous Saturday witness had been

out to Jake Prescott’s house with defendant, |

as defendant wanted Prescott to sign papers
for sale of Lola’s timber; ‘that according to
defendant, Prescott was Lola’s guardian and
‘it was hecéssary. ao him to: ean the papers.

ee

PNT

Ly PAR Re RE ELAN Re oc ge ye Owe ek ODMR

eee Se ee ee ee ee ee


cee an caveman tienen eter it bonnets

mh)
ih ciate 2 ests Se iia

453 Ala.

ay DG Obes
ary ti§. DO

corroborate the testimony of Charlie Odi-
orne so as to,make his. testimony admissi-
ble? The rules which govern in this regard
have been stated by this.court,as follows: |

es Whether or not there. was evidence cor-
goborating the accomplice witness, tending
to connect the! défendant with’ the commis-
sion of the offense, is a:question of law; its
aveight and sufficiency, along with the tes-
timony of thé accomplice to show the de-
fendant’s: guilt ‘beyond\a reasonable doubt,
Were questions: for the jury. “Code 1923, §
5635 [Code 1940, ‘Tits'15; §°307] 5 Read v.
‘State; 195 Alal673, 71 So, 96; ‘Doss v. State,
220° Ala!'30,° 123° 36, '231;'68 ALR. 712;

»<[10, 11}. Was, the, evidence. sufficient, to

‘Lindsey v. State, 170 Ala. 80, 54 So, 516.)

ae It necessary, that the corrobotat-
ing, evidence. refer to, any ‘particular state-

ment. of, fact testified to Ay the accomplice. ee
Lf. it strengthens the probative criminating \\-

‘force of his testimony, and tends to connect
the defendant with the. commission of the
offense, itis sufficient to warrant, the sub-
‘mission.of the issue. of, guilt or innocence to

the jury. Malachi v. State, 89 Ala. 134, 8 |
§o.,104; Ross v. State, 74 Ala, 532; Palmer ;
v: State; 165 Ala. 129, 51; So. 358; McDan- -

dels v., State, 162 Ala. 25, 50, So. 32427.
‘Smith v, State, 230. Ala. 413, 416, 161 So.

$38,942. ty tay i. Apron ye

mt TO 88 aly ., Motive... : ie Bead gt hg]
so A most’ common | circumstance is «de-
feeased’s possession: of money or’ property,

cag leading to the accused’s desire to kill,”

‘Wigtiore om Evidence (3d:.Ed.), p.- $37.3
There’ was’ evidence tending to show that °
‘defendant bvrote letters, which tended’ to “

‘indicatethat he ‘expected: tovbenefit finan-

Scially’? fromthe * death of: the deceased.

“Dottie Burrell ‘swore: -she saw defendant -
-at’ Prescott’s ‘home twenty: times: or more -

.

‘tried to get Prescott tocsign. |
“Burrell testified’ that ‘she’ saw the defend-
vant talking /to. Prescott) about the timber

‘and he had papers in his hand, which he |
Lola Burns testi- |

“asked: Prescott’ to sign. 1h
fied defendant had made ‘several trips to
esee-Prescott and-jhad endeavored to get

Prescott to let him sell the timber, that the |

f defendant swarited. to handle the timber.
fae 3 | Effort to Suppress Testimony _ a
of {12].:-The State introduced in evidence
-a letter: which Lola Burns testified was in
the handwriting .of the. defendant, and

“which she received when she went to

19 SOUTHERN REPORTER, 24 SERINS

land onetime saw" him: with papers in his -
bands referring tol some timber, which he :
Mrs. Betty °

Chattanooga, in effect telling her that she

knew nothing, had not been out of. his

house for one week, and to say, nothing.
The State also introduced ‘a writing which
the witness Thomas Pinson swore, defend-
ant tried to pass from: his ‘cell in jail. to
Charlie Odiorne in his cell in jail, the writ-
ing in effect saying that losing his head
was the trouble, and: not ‘to’ talk.°‘ The 'pa-
‘per was not signed, ‘but this evidence, un-
der the circumstances, was ‘competent and
anitesibter 002 LEGOrins and baad’ 14, 0ak8

oto) Eiffo

| rt to Fabricate Testimony
aa The State introduced a letter written. by
the ‘defendant suggesting that for publicity
purposes, ‘a statement -pe procured. from
‘Lola Burns, showing ‘in effect! that defend-
‘ant was at home ‘on Satutday night, Jan-.

and Charlie Odiorne; that his, attention
-was called to, the matter because defendant
was rough talking because the negro help-
er had attempted to put water into the
-radiator of the cat, which was ‘a: Franklin

ar (33) Montez Turner. testified. without

seen the car a. good. many times before;
that the car had a loud noise that was dif-
ferent from other. cars:

cof defendant and) knew. its: sound; that
she heard the sound of this particular cat

the Saturday night before, Prescott disap-
peared; that it had a roar like an airplane

and was different, from the sound of any

other car she had ever heard. Mrs. Betty
Burrell, Mrs. Mamie, Harbin and Jean
Gober. all, testified, to Tike effect. All of
these witnesses testified that, they were

objection that she saw.a cat, pass about |

stands

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Ot rpret-
ende.auy them
if possible,. or,
Rclaring which
6 room or rea-
1 the influence
on,”. Ex parte
», 369, 370,
w drawing. the
he Constitution
ce. ‘of the con-
thas’ been -re-
that there is no
§ 106 of: the.
ion of the Code

i _ a i
Phowever; that
m contemplates
:

nd within ‘every
years, to make
* digesting, and
fatutes of this
both -civil: and

however. in the
rev é theoan-

Co ‘But if

‘Mothing in the.

a. from con
al application.”

a 310, 314, 160
bdified not only
as practicable,
tigen readily to
at they declare,

ystematic, con- *

ehénsive form,”
& lesser degree
me reasons for
had: laws, and cs
the time of the
e general laws
ere is no good
forder to know
‘eo through the
in general laws
d by the differ-

at was not im-
ition of gencral
nm a Code which
aed to codifica-
tt: local applica-
opting the Code
fencral law, §

-—

e OF iets RNR Oe
hic ihe ei tae

_
ay

HM OUn i. BURNS AWWSTATIN rcs wAla.  /455
19 So.2d 450 ; : as

106 of:the Constitution has :no application.
See Jenkins v.:State, Ala.Sup., 16 S0.2d sis
Brandon y, State, 233 Ala, 1; 173 So. 238;

It is further: seriously contended that to
uphold: the statutes’ providing for the: jury
procedure in’? capital: cases in. Jefferson
County-is ‘to deny the appellant that fair
and impartial procedure which is a substan-
tial element of due process of law as guar-
anteed by the 14th Amendment to the Fed-
eral Constitution. ‘The differences between
the rights of 'a defendant in’a capital case in
Jefferson County and in other: counties of

the ‘state ‘are well stated in the case of.

Stewart v. State: of Alabama, Ala.Sup.,:17
$0.2d 871, although: ‘in ‘that case no consti-
tutional question was’ involved.

“We need not inquire into the question df
whether such a motion properly presents
defendant’s contention in the light of our

case of Irwin‘v. State, 220 Ala. 160, 124
So. 410, for we do not think the defendant.

had a right to be’ present and be heard in
respect to the excuses ‘of jurors presented
to the judge organizing the jury for that
week in view of the law which has applica-
tion to Jefferson County in the trial of such
cases; nor that the principle of Stinson v.
State, 223 Ala. 327;'135 So. 571, and Small-
wood v.. State; 235 Ala. 425, 179 So. a7;
is here controlling,

“Under the statutes which provide for a
special venire in “¢apital cases to include
those ‘drawn on the regular juries (of) the
week,’ we held in those cases that the court

could not prior to the date of trial excuse ©

any of them who had’ been thus drawn for
service that week, Section 8644, Code of
1923. In ‘that respect section 63, Title 30,
Code of 1940 is not materially different.
But by section '7 of the Act of September
13, 1935 (page 1010), section 226, Title 62,
Code of 1940, no special venire is required
in Jefferson County for the trial of capital
felonies, but the venire shall be twenty-four
competent jurors obtained from the regular
juries in the ‘court.’ The effect and con-
stitutionality of that Act has been sustained,
Dixon v. State, 27 Ala.App. 64, 167 So. 340;
certiorari denied 232 Ala. 150, 167 So, 349.

“Under that, set up, ‘the defendant in a
capital case in Jefferson County must be
content with twenty-four competent jurors
regularly organized for jury ‘service that
week, and has no right to have included oth-
ers who were drawn for jury service but.
excused by the judge by authority of law.
Under sections 4 and 5, Title.30; Code of
1940, the court in organizing a jury for the

he

aveek has a: discrétion/to::¢xcuse venire-
men. from such service,” eine
of Alabama,’ Ala.Sup.;:17,S0.2d. 871, |

- Before dealing directly with the” gestid
y, ie inteiogerteht of the 14th Amendment, we

think it well to refer to ati Alabama author-

ity, which by analogous reasoning, is ap-
plicable here. We refer to the case of State
ex rel. Brandon et al.’v.'Prince et al., 199
Ala, 444, 74 So, 939. ‘The decision in that
case involved the constitutionality of a local
act which abolished the office of jury com-
missioner for Tuscaloosa County and im-
posed the duties and conferred thé powers
thereof upon a board of revenue created by
the act. It was contended that the local act

infringed § 105 of the State Constitution,

which provides that no local act shall be
enacted where the subject is covered by
general law. In upholding the ‘local act,
this court, epealing pe ae Mr. abet
Mayfield, said: —

(Ok ok a fact, ret here's was a pagent
eral law by which the juries for that county
could be drawn by other boards or officers
did not prevent the Legislature from pro-
viding, by a local enactment, that the
juries shall be drawn by other boards, of-
ficers, or persons than those provided for
in the gencral law. There is no constitu-
tional provision requiring that the laws as
to drawing and selecting juries shall be uni-.
form in all the counties or in all of the
courts of the state. .8.. %...%

Fy

“Itis apart: of: the. judicial Rice of
this state before’ and ‘since the adoption.
of the Constitution of 1901 that the methods
and agencies for the selecting and- drawing
of jurors, etc., have been: provided for by
both local and general statutes.. As before.
stated, there being no constitutional provi-
sion requiring the laws on this subject to be
uniform in all the counties or all the courts,
the Legislature may provide different laws
for different counties; *°.* = *.” ‘State ex
rel. Brandon et al. v. Prince et al. 199 Ala.
444, 447, 74 So..939, 941, .

This court in the: case ok Morris: v. State.
234 Ala. 520, 175 So, 283, had before it for
consideration the act of the Legislature—.
Acts 1935, p. 1010—which is one of the gen-
eral acts with local application, as shown
above, which was codified in sub. 5; Title
62, Code of 1940, and which was designed
to provide for and regulate the mode of se-.
lection and impaneling: juries. in! counties

having a population of 300,000 or more, ac~

ar eed to the ee or any: future ‘federal

ieee boy

Le = ae

rr

Se


<a

Fe NCL Cin SiS se acy zi

ORDERS ah seattiRetsnas ek che saga gars sibiteegresaenns

Gale: i 2: *

re encepesernbsa i

ae Al = pecntemp eonposmena a Se ae

census, . 1n this Act, for example, it was
provided that no special venire shall be or-
dered or drawn for trial of a defendant in a

Capital case and the defendant. shall only

be entitled to strike from a list of twenty-
four competent jurors, In that case, in con-
struing the Act in the light of the 14th
Amendment to the Constitution of the Unit-
ed) States, this court said: “The jury was
drawn and impaneled in strict compliance
with General Acts 1935, p. 1010 [ Code. 1940,
Tit, 62, §§ 221-227], but the defendant con-
tended that said act violated the Federal
Constitution, in that it is repugnant to the
Fourteenth Amendment to the Constitution
of the United States, as denying to appellant
the equal protection of the law and depriy-
ing him of life and liberty. without due proc-
ess of law. This contention is without mer-
it, and was so decided in the case of Dixon
Vv, State, 232 Ala. 150, 167 So, 349, wherein
this court not only denied certiorari but ex-

Pressly approved the opinion of the Court

of Appeals in said Dixon Case [27 Ala.App.
64], 167 So. 340.” Morris v. State, 234 Ala.
520; 175 So. 283, 284,  itlios
. The appeal.in the case of Morris v. State
was dismissed by the Suprame Court of the
United. States for the want of a substantial
federal question, Morris v. State of Ala-
bama, 302:,U.S, 642, 58 S.Ct. 58, 82 L.Ed,
499, rehearing denied 302 U.S. 778, 58 S.Ct;
263, 82 L.Ed, 602. :

The Morris case, however, is not a pre-

- ise, authority here, because the law now

under consideration provides a procedure
exclusively for Jefferson County, regardless
of: whether there is another county witha
population of 300,000 or more, according to

_the last or any future federal census,

“The test which governs in the case at
bar is not whether the procedure in Jeffer-
son County is different from the procedure
in other counties, but the test is whether
each person in Jefferson County enjoys thé
Same protection of the law, accorded by law
to all other persons in Jefferson County.
This. principle was established by the Su-
preme Court of! the United States in the
case of Gardner v. State of Michigan, 199
US. 325, 26 S.Ct. 106, 50 L.Ed. 212, where
the Court said: “This: difference between
the general law relating to jury trials and
the: special law relating to) Wayne county,
it, is, said, constitutes. a discrimination

against the people. of. that county, and
amounts: toa, denial to, them of the equal
- protection of the law.. This view does not:
command itself to our judgment. It is fully

19 SOUTHRHRN REPORTER, 2d SERINS

met and shown not to be sound by the judg.
ment in Missouri’. Lewis. (Bowman v,
Lewis), 101 U.S, 22, 31, 25 L.Ed. 989, 992,
where Mr. Justice Bradley, speaking ‘for
the court, and referring to the 14th Amend-
ment, said: ‘The Jast. Testriction, as' to the
equal protection..of the laws, is not violated
-by any diversity in the jurisdiction of the
several courts as to subject-matter, amount,
or finality of decision, if all persons within
the territorial limits’ of their, respective
jurisdictions have an equal right, in, like
cases and under like\.circumstances to re-
sort to them for redress... Each state has
the right to make Political subdivisions of
its territory for. municipal Purposes, and to
regulate their local government., As re-

spects the administration of justice, it May .

establish one system of courts for cities and
another for rural districts, one system for
one portion of its territory, and another
system for another portion, — Convenience,
if not necessity often requires. this to he
done, and it would seriously interfere with
the power of a state to regulate its internal
affairs to deny to. it. this right, We think
it is not denied or taken away by anything
in the Constitution of the, United States,
including the amendments thereto. We
might go still futther and say, with undoubt-
ed truth, that there is‘nothing in the Con-
stitution to prevent any state from adopt-
ing any system of laws or judicature it
sees fit for all or any part of its territory,
If the state of New York, for example,
should see fit to adopt the civil law’ and its
method of Procedure, for New York city
and the surrounding counties, and the com-
mon law and its method of procedure for the
rest of the state, there is nothing in the
Constitution of the United States to prevent
its doing so. This would not, of. itself,
within the meaning of the 14th Amendment,
be a denial to any person of the equal pro»
tection of the laws, If every person reside
ing or being in either portion of the state
should be accorded the equal protection of
the laws prevailing there, he could not justly
complain of a violation of the clause re-

ferred to. For, as before said, it has re- 3

spect to persons and classes of persons. It
means that. no person or class of persons

shall be denied the same protection of the

laws which is enjoyed by other persons or

other classes in the same place and under

like circumstances,’” Gardner v, State of
Michigan, 199 U.S. 325, 26 S.Ct.:106, 109,
90 L.Ed. 212, 217, See also. Vernon y. State,
Ala.Sup., 18 So.2d:388;.,16 C.J.S., Consti-

tutional Law, p. 1135, § 563,

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- BYARS, Bygene, white, hanged Birmingham, Alabama, 1-8-1895.

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eas

SATURDAY MORNING.

THE MONTGOM:

HOME BUILDERS
ATTENTION!

Before purchasing see my
stock of elegant up-to-date
cabinet mantels, some in
«Mission? Soh ae and wall
papers oe
‘Use The Mastic

Paint, “the kind that lasts,’’take
on other as a substitute, aves per-

- fect satisfaction.

Match. 1903, near Montevallo.

alone.

If you ‘contemplate building or

_ plastering, see me_ in reference to

“‘Ivory’”’ Pulp Plaster, the best and
cheapest on the market. Leading
contractors all use the ‘‘Ivory.’’

¢. Y. BOGACKI,

Dealer in Sash, Doors and Blinds,

Phone 330. 34 Commerce $b

PENALTY OF OF MURDER

NEGROES ‘EXECUTED: AT coLUM-

_ BIANA AND ANNISTON,
—

Larkin Johnson Slew White Man, |

While Andrew Burton Killed
a pean of His own
Race.

Columbiana, Sept. BR sey ae
12:16 this afternoon, Larkin Johnson, a
négro, was hanged in the jail yard.

The erime for which Johnston was

<sccut was the murder of John Law-

ley, . ex-Confederate

soldier, in
Johnson marched to the scaffold
In a statement he said he did
the killing in the heat of passion. He
said he had faith in Jesus and asked
all to meet him in heaven.

The negro was pronounced dead in
twelve minutes, and the body was
turned over to relatives and it was
taken to Montevallo for burial. He

died of strangulation.

BURTON HANGED.

eee ae mae | ae

Nesro ‘er Makes Sp h W: i
- His Hearers From Evil,

Anniston, Sept. 9.—(Special.)—An-
drew Burton with a cool nerve today
met death on the scaffold. He was
hanged at. 11:50 o'clock a. m., for the
murder of William Richardson, a negro
at Francis Station, on, the Seaboard Air
Line Railway.

Burton was. tried and eeavicnea at
the last term of the City Court. His
mother, wife and sister came from
Birmingham to witness the execution
and to take his body to the city.

Burton talked for thirty minutes
warning the people, particularly the
young, to. turn from sin of all kinds.
He said he was prepared to meet his
Maker and that he was glad the time
had come for him to go to heaven.

A large crowd gathered about the
jail yard as early as 8 o'clock this
morning and on the outside of the
throng faces of several white women
could be seen. —

After his talk, whigh: he made from
the second story window of the jail,
those who had tickets to the enclosure
where the hanging took place where
admitted. Burton was accompanied
pe Sho ve oy OOdrurt, vthe shen, one
défuty and two colored ministers.

His: neck was broken by the ‘fall,
and there was litle or no struggle. He
met death without a single murmur
and as he stood on the gallows he
showed no signs of nervousness: The
rope with which he was hanged was
eut up and distributed as souvenirs,

This is the first hanging Anniston
has ever had and the third hanging in
Calhoun County.

ANDREW

Manuel Estrada Cabrera, who .. has
been re-elected for a term of six years

‘as president of Guatamala, has come

to be known as “the Diaz of his coun-
try.” From 1862 to 1898, when Cabrera
was first elected president, Guatamala
was in a continual turmoil of revolu-
tions. But for six years there has been
remarkable peace under Cabrera,

Dysentery

1s a dangerous disease, but can be cured.
There is aremedy that never fails. It has
been used in nine epidemics dei ohne
with perfect success. It is ca.

Chamberlain's Colic, Cholera
_ and Diarrhoea Remedy.

it is e ps ean} valuable for children and
uced with water and sweetened,
is. Thisuent to take. Price, 25 and 50 cents.

ut

JONES DIES
ON GALLOWS,

Hanging Without Specta-

cular Features.

ee

EXECUTED IN THE JAIL
Negro Boy Pays Penalty for a
Holiday Murder.

to the End,

Protested His I
and Was Strangled While
Plending for Mercy

Few Spectators.

a os

So overcome with fright that he had
to be supported by deputy sheriffs,
Tony Jones, a negro, who was hanged
for the murder of Warren Jones, a ne-
gro, went to his death at 12 hte
yesterday, protesting that he was inho-
cent of the crime for which he was con-
victed.

Crying aloud to God to have mercy
on his soul, the words were strangled
in the throat of the black man as his
body shot through the steel trap door
a distance of fully eight feet, just after
the clocks had struck the noon hour.

| Within five minutes attending physi-

cians said that Tony Jones was dead.

The execution took place within the
walls of the Montgomery County jail
and on the gallows erected there some
time ago. Few persons were admitted
to the jail to witness the hanging and
although the streets adjacent.to the
prison were crowded with negroes, most
of them from the rural districts, the
tragedy was absolutely devoid of spec-
tacular features.

Last Appeal for Clemency.

The negro boy—he was 20 years old
—was hopeful to the last that some-
thing would happen to avert the ter-
rible fate ordained by the law. His
mother and brother went to the Capitol
yesterday morning and pleaded with
Governor Cunningham to grant him a
respite. The Governor had carefully

had declined to interfere with the sent-
ence of the court. He could do noth-
ing but repeat to the negro Mother his
inexorable decision. —

Jones spent his last night in life alone
in the steel cage adjacent to the gal-
lows. Through the bars of the cage
‘he could look out upon the adjusted
noose hanging over the terrible trap
door through which he was to travel to
eternity. He was restless throughout
the night and slept very little.

Early yesterday morning the con-
demned man was transferred to one of
the front rooms in the living quarters
of the jail on the second floor and over-
looking Washington Street. A. com-
plete outfit of new clothing, including
shoes and underwear, had been pro-
vided for Jones and when they had
been donned—his burial outfit—he was
visited by Rev. A. J. Stokes, negro
pastor of the Columbus Street Baptist
Church, who has visited him daily since
he was condemned to death; Rev. D.
W.. Gayles and Rev, A. H. Harris. of
the negro Baptist Church aid Rev.
Johnson and Rev. Williams of the negro.
Methodist Church, The negro preach-
ers remained with him until. the end and
walked with him to the gallows.

A few minutes before 12 o'clock Dep-
uty Sheriffs B. C. Young and S. 8. Bel-
ser announced that Jones's time had
come, and walking on. either side. of
him, accompanied by negro preachers,
the deputies took the condemned man
down the stairway and into the cage
department of the jail on the ground
floor, where the gallows is located. at
the extreme northern end of the jail.
Jones did not falter. His face was that
of the stoie until he reached the steel
stairway leading to the trap door. Here
his face was drawn and his body quiv-
ered. His legs were noticeably weak
and the deputies supported him.

Reaching the platform Stokes of-
fered a fervent invocation. Jones stand-
ing with scared face and nervous body.
Quickly the deputies tied hands and
feet and adjusted a black cap over hig
head, shutting out the view forever
from his eyes.

Tragic Moment.

The negro preacher Stokes. standing
close by, whispered, “Be brave.” Then
the emotion of the condemned negro
burst forth.

“Oh Lord, oh God, have mercy,” he
shrieked as his form gave way in a
collapse.

“Have mercy, oh’God: have a

Sheriff Waller had pulled the bolt
which held fhe steel trap and the
words were strangled in the throat of

the dying negro by the tightening of

reviewed the case on Wednesday and-

[ the rope about his neck, drawn, by ake
weight of his body. —

‘The suspended body writhea for a
minute or two and within five minutes
Dr. J. Ns.Baker, acting as County

was dead.
It required about fifteen minutes for
the body to be taken down, placed in

turned over to the mother and brother
of the dead man who awaited outside
the jail.
was done by Elijah Cook, a negro un-

a wagon for conveyance to the planta-
tion of Amos Jones, sixteen miles from
Montgomery on the Woodley Road,
where it will be interred alongside the
body of Warren Jones, ale was eos |
by Tony Jones. ‘

The physicians who signed the death
certificate, he ing witnessed the exe-
cution, were
Milligan, D:

. S. Chapman, Dr. W.
A. Sellers < Dr. Charles Li Marks.
The certific was also signed by
Deputy Sher ts B.C. Young and S. S.
Belser, E. J. Harris and J. B. Clem-
ents, and Justices of the Peace B. C.
Tarver, J. T. Cone and R. H. Jones.
Sheriff Waller said that Tony Jones
was the ninth negro to be hanged on
‘the gallows in the jail and that his
body writhed more than any man exe-
cuted there before. The doctors, how-
ever, expressed the opinion that the

the muscles and not to pain.
A Christmas Murder. ‘i
Tony Jones shot and killed Warren

@ prosperous farmer of Montgomery
County, a few nights before Christmas
in 1903.. He was convicted at the Feb-
ruary term of the City Court and was
‘sentenced to death. The case was ap-
pealed to the Supreme Court, which af-
firmed the lower court in June, and

tion.
The trouble belweee: Watrer Jones:

Jones, the wife of Warren Jones. The
woman was convicted of being an ac-
complice of Tony Jones and is serving
a sentence of Afteen Dok in the pene
itentiary. a

Stok, the negro preacher who. ate
tended Jones on the scaffold, declared
his belief in the inn e of the n

‘Physician, announced that Tony Jones

a rude coffin and made ready to be}

The preparation for burial :

dertaker and the body was placed in:

y. J. N, Baker, Dr, R. L.’

contortions were due to contraction of.

Jones on the plantation of Amos Jones,

fixed September 9 as the date of execu-

and Tony Jones was due to Elizabeth |

gro.

groes, and he never had as much ‘talth

in any of them as he had in Jones. ©
said Jones protested his innocence
the last, saying that he. Knew who Kill-

HE WONt

0. B. Waldo,

of 14. N. ‘Mebopengh, < ie

held the lucky ticket in our’ wandey
contest this week, so he is entitled to
a gallon es cream Free of Charge.

We will give, in our Sunday Contest
tomorrow, 10 Soda Wader ‘Tickets, ench
good for 6 five-cent drinks, at Dowe’s,
to those holding Ice Cream Tickets. In

among more people, thus giving atte a
chance to win. :

Drink on us! Win: a ‘Hekett |

Our new cream:

“Cherry Sherry,” 4

Is just being introduced. ae

It is the best cream ever made, ¢ com-
prising all the good points of other
good crenms, and besides’ being made
of pure Maraschino Cherries.  _ ae

To make you acquainted, we are go-
ing to cut the price for just this once.

It sells for $1.00 per half-gallon, ne
50c. per quart.

But tomorrow We will ‘take. orders
for delivery at 75 cents per hale gallon
and 40 cents per quart.

much to make and deliver it.

Try some for desert tomorrow, es
“We will 2Ino have these flavors: -
Vanilla, Burnt Almond, Caramel,
Chocointe and Cherry eee mae ‘

Also Orange Ice =

and Pineapple Sherbet. |

Get your erdéers down this morning,
and thus guarantee prompt delty: ery to~
morrow.

Insist on getting my phone Bo.

Dove, Dovwe.

TAX. ASSESSMENTS, :

Counties Continue to Report Large In-
- creases. -
The tax assessment of
County with its large increase of over
| six million dollars, has been received
in the office of the State Auditor. The
Jefferson County valuation lacks only

$39,000 of reaching $51,000,000. -
The predictions made a week ago in
reports upon Jefferson County filed by
Examiner of Public Accounts Sedberry
and Gorman were realized in the ab-
stract sent in to the Auditor's office.

The decrease is not larga, hovyever.
Winston is the other County in which
a decrease was recorded.

Assessment abstracts have been re-
ceived by. the sstate Auditor during the
week from Cherokee, Clarke, Choctaw.
Etowah, Jefferson, Lauderdale.

ties. Each of these counties show in-
creased assessments.

If a man is firm with his children,
their mother hates him for it, and de-
spises him if he isn’t.

Stokes said he had stood on. ou

ed Warren Jones, but “could not tele fy

this way the prize will be distributed

“It honestly costs us very earis? gps: y

Jefferson

The abstract received from Colbert |
County shows the second decrease that
has been reported to the State Auditor.|

Lowndes, Marshall and Randolph coun- |.

BELL Li

it WILL So 4

rx: Blnckw:

Able in His
: Me
The Bell 1

brought before
jury Monday, .
interest in the
ed by the citize

‘The three spi

| Cherry and St

-are now in ja!
the grand jur?

The State w
erts, the negr,
-erime implicat!
stables and a’
citizens of tk
Sheriff Blackwi
turned to capi
and his cours:
by the best ci
The general be
Blackwell has
dence in hané
public. The ¢
attention throt
the Northern
peesed to devote

: Funeral
The funeral
“Was conducted
o'clock from t!
Lockhart, on (
Gross, . pastor
church, conduc
funeral was |
many. friends .
larg. nim Bae ]
received. The
Kore cemetery.

ie Ton
USenvices wel
‘Mishkan’ Israe
noon, being th
}ish New Year
| were conducte
special musica
-by the choir.
largely attend:
pat the ‘temple
‘ing at 10 o’cl
‘jis invited, Tl
| will extend ur

It has devel
ings in a color
ed a rumor to.
Day Club” hac
negroes of Sel)
@ Masonic lod
the lodge wai

[this afternoon

public be infor
Selma. have n¢
a re Day

Rust Cru
= Cyrus: Green
employed by;

| made an effort

of a caboose’
‘The wheel of
foot crushing’
manner that a
sary. The ne;
and the railro
an Sear im

Th Oa
The eeu
Mobile today ;
freight, iskid
ae a

Hea
The cotton :
amounted toy

: Loca
‘Miss ‘Mary ¢
visit. to: relati:
noon. for Mon:
She will not
Augusta, Ga.,
the year.

“The cotton
day were 975
expect the rece
the 1,500 mar.

Mrs. George
the home of hi
HS, Danie
span dlas the é

aires ‘Felix |
the mountains

A. Pi Lovemi
a Selma visitor

OW. H. Lawr
the Gay in Se

J. W. Hunt
Meridian ee

Mt Ts.

Walter
home. :

A BOO
Feminine Tilg |
© the Pri
Feminala, the
nent. physician,
‘ten years ima»
}and sanitorium’

On the

Savara ™

ing is:
and guaranteed
a bottle.

} The mission ¢
up robust, sexua
do this, normal

‘must be made ti

eee Lene Se

“ie,


beaten oe

“Hy abore fant ONva, Abeeritiel pativcley cu

(Of Kio deetener, Arm umminae, Vawrd, (wrieccolg Latina
Pha pues Urte Nomutredk fur The aul ab ams
Conn tots goa Uowd Cuter $e Lado re Kine ayo
: 40 ationa EERE 8 Were Kd Wu Jette
uct Pe? aD and Warned) Yao Aart lrLrrin)


IEDGAR CALDWELL::
| DIES ON GALLOWS

Wife of Linten, With Child in Arms, Witnesses. Death 0 of |
‘Criminals: Crowd of 2,500. Hears 45-Minute Spee
Condemned: Man’ olds Courage to the End .

Co rr ae A tte aera

Molding ‘im her left arm the: baby girl of Ccoil Tanten, dorn atver
{ts father’a death, and holding his Ittle sou by the right hand, Mrs,
Cecil Tdnten, widow of the street car conductor killed by Sergeant Ede:
Gar Caldwelt on tho afternoon of December 15, 1918 witnetaed th cles
gal xecution. of. the negro. soldicr in the Calhoun county Jail yard. ag
noon Friday,

Tho trap was sprung by shewite.
'w, E Parker at four mindtes dbe-;
fore 13 o'clock and the negro aol-
_dler was pronounced dead in 13
‘minutes by Drs. Payl D. Vann, B.
I. Curlee, Booger, Apberry,- Mc-
Craw, Cryer and others, :

Caldwell was permitted to ad-
dresa an audience of 2500 people |
| gases: vled tn ‘tront of the jail and
spoke for about 89 minutes. He |
read” ‘among other scriptures - the;
23rd Psalm, aang two songs and
delivered an earnest prayer in cone
clusion.

The negro soldier went to the
| fallowe to pay the penalty of his
lorime with a firm step and «a
emus on hia face, He stopped In

the jail corridor Jong enough to
Jehako hands with a number of his
acquaintances. A touching. gcene

AB - -rendered—-when-the- condemned
negro stooped down and apoke}
kindly to the Iittlp boy of the man i
he, had killed and shook handa|
with the widow, who had come |
frgm_ Clay.aounty - to witness the}
execvition of her husband’, slayer, |

After ‘delivering his addreas,: in
I which—he-—advised—mpn, womey, |

boys and girls to lead cleaner lives,
| Caldwell and Captain Dallas Hold>
er of th eSalvation Army, were
placed In a cell on the lower’ floor
of the jall, and the prisoner war
accompanied to the scaffold by
Captain Hodder, who has been his
religious instructor alnce his cons
finement in the county jail. oS
Witneseed by 200 —
‘ The execution of the negro wae
witnessed by probably 200 people

S admitted to the jal! enclosure and
by-a_Jarge number. who had olimb<|
ed to the top of the. talier: bulld=
Ings on the west aldo” of Nobie
atreet and the nearby bullgings | on
pnirtes DS atrneh: .


The wonderful nerve: exhibited
by the negro, ag he spoke to ba
large assembly of peoples on the
leront of the jafl Impressed. every>
body with the sincerily of his
claims to conversion to the relige
fon of Jesus Christ and many, men]

the negro told his story.

Caldwell sang the song “W
‘understand it better hy ang by,
ang eoncluied hin talk with one
verse of the song; “I am going to.
walk and talk with Jesus.” |.

The condemned negro spoke
feelingly of the kindness shown to
‘him by Jailor and Mrs. Farrell,
and.by. Sheriff. Parkégy and ‘in. bis
prayer before the jail asked that
God's” blessings would. reat upon
all of those who had had charge
of him since his incarperation.

In bidding his attorney,’ Charies
D. Kline, farewell, Caldwell: made
the statement that the ldwyer had
fought a ‘good -fight, ang with a
*God-.bleas.: you,” turned in “the
hallway of the jail to accompany
Sheriff Parker tp: the scaffold, His
nec! .¢° broken by the drop and’
the -several__-physiclins ». present.
Pronounced him dead in twelye
mimutes, ‘ a ed ohn]

Among the spectators: admitted
to the county jail were.A. H, Bor-
ders and M. W. Woodraft, ex:
sherift's of this county, each: of
whom were called upon to hang
murderers during thelr. terms of
office. Besides the 'w. \ex/sheriffs
Sherifl Harlin; of Clay county, 1,
B Pettus, Newt. Lindsey., Captain
Holder, W. T. Pruitt, A. J. Haley,

nd: ; others” occupied’ the
floor. of the: scaffold and » wit~
nessed the -drop of: therope- as:
Steriff Parker polleg the trigger..
i af ‘  Orime : > nae &

tnY i. Caldwell’s ‘4 ots NG -s
‘The erime, for which, the negra
was hanged ‘occurred on ‘the after-
noon of Sunday, December., 15,
11918.) Ceall; Linten being shot to!


—

4%20 SOUTHERN REPORTER, Vol. 16. (Ala.

win some money from Walker,” the deceas-

‘ed; and still another, that defendant propos-

ed to go in with him and fix the cards so
that they could win money from deceased;
-all of which the court allowed against the
objection and exception of defendant. This
‘evidence was admissible, in counection with
‘the other evidence in the cause, to show the
relations between the defendant and deceas-
‘ed; that defendant was endeavoring to as-
‘certain what money he had and that he was
purposing to get it.by devious ways.

There were a number of other rulings of
the court on rejection of evidence, to which
‘exceptions were reserved, but which are not
insisted on in the brief of counsel for de-
fendant. We have examined them, and find-
ing the most of them so clearly without mer-
it, we need not consider them.

The two charges requested by defendant
-and refused, were manifestly illegal.

We find no error in the record, and the
-case must be affirmed. It appearing that
the day fixed for the execution of the sen-
tence of the law has passed, this court now
appoints ‘Friday, the 8th day of Iebruary,
1895, as the day on which the proper execu-
tive officer of the county of Jefferson, in the
manner required by statute, will execute the
sentence of the law, as pronounced by the
court,

WOODROW v. HAWVING.
{Supreme Court of Alabama. Dec. 19, 1894.)

ACTION FOR SERVICES — Common Counts — EvI-
DENCE—DEFENSES—SPECIAL CONTRACT—REVIEW
J ON APPEAL— FINDING BY CiTy CoUrtT.

1. A person accepting employment as a dyer
‘impliedly stipulates that he is qualified to per-
form the work, and is liable to his employer for
damage arising from his unskillfulness.

2. A person performing services under a spe-
cial contract may, on completion thereof, sue
for his wages under common counts, and put
in evidence the special contract to show the
character, value, and length of time the services
were rendered.

3. Where an employé who has rendered
services under a special contract sues for his
wages under a common count, defendant may
set up the special contract, and recoup damages
for breach thereof.

4. The act creating the city court of Birming-
‘ham, providing thaton appeals fromthe city court
the supreme court shall review the Judgments
of the city court without any presumption in
favor of its rulings on the evidence, does not au-
thorize the reversal of a case, tried by the court,
as against the weight of the evidence, where the
judgment was based on oral testimony, as in
such case the supreme court, not having seen
the witnesses, has not all the legal evidence and
data before it which the trial court had.

5. Where the case is tried by the court, er-
ror in the admission of evidence is no ground
for reversal, where the judgment is sustained
by the other evidence.

Appeal from city court of Birmingham;
W. W. Wilkerson, Judge.

Action by Robert Hawving against John
Woodrow. From a judgment for plaintiff,
defendant appeals. ‘Aflirmed.

This was an action to recover.an amount
due for work and labor done, and was
brought by the appellee, Robert Hawving,
against the appellant, John Woodrow, doing
business as the Birmingham Steam Dye
Works. On the examination of the plain-
tiff, he testified, among other things, that,
when he was employed to do dye work, his
contract of employment was made with Hen-
ry Woodrow, father of the defendant, be-
cause the plaintiff could not speak Inglish
very well, and Henry Woodrow could con-
verse with him in German; and after testi-
fying as to his employment, and the payment
of his wages from week to week, up to Feb-
ruary, 1893, the plaintiff further testified
that he demanded payment from Henry
Woodrow of the amount due him, and that
he told Henry Woodrow that he wanted
something to show for what they owed hii;
that Henry Woodrow walked off a little way
to where John Woodrow was standing, and,
after a conversation with the latter, wrote
out and gave to the plaintiff the follow-
ing duebill: ‘Due Robert Hawving $62.35.
Birmingham Steam Dye Works, John Wood-
row.” The plaintiff further testified that he
did not know what connection Henry Wood-
row had with the business, but that he was
generally paid off by Henry Woodrow, who
was continually in and about the place of
business.: Upon the plaintiff offering to in-
troduce in evidence the duebill or memoran-
dum, the defendant objected, on the grounds
—Tirst, that the execution of the writing had
not been sufficiently proven; second, that it
was not shown that Henry Woodrow had
authority to bind John Woodrow; and, third,
“because it was irrelevant, for the reason
that the complaint was for work and labor
done, and not on a stated account.” The
court overruled the objection, and admitted
the duebill or memorandum in evidence; and
to this ruling the defendant duly excepted.
The defendant also moved to exclude the tes-
timony of the plaintiff as to his conversation
with Henry Woodrow, on the ground of Its
irrelevancy. The court overruled this mo-
tion, and the defendant duly excepted.

John H. Miller, for appellant. ‘Cabaniss &
Weakley and George Huddleston, for appel-
lee. ae

COLEMAN, J. The appellee, Hawving,
sued the appellant, Woodrow, in the jus-
tice’s court, and recovered a judgment for
$100. The defendant appealed to the cireult
court, where the case was tried de novo by
the court, without the intervention of a jury;
and the court rendered judgment for the
plaintiff for the amount of the judgment re
covered in the justice’s court, and interest
thereon as damages. ‘The rule is that when
a case is tried by the court, without a jury,
although the trial court may have erred In
the admission of evidence, yet, if the judg-
ment is sustained by all the legal evidence,
this court will not reverse the case, The

death on a street ian the Con;
stantine stretch in Oxanna, the
within a few
hundred yards of the home-of the

killing occurring

_gonductor.

A. dispute arose betweén ‘the
. Street car -Canductor, Caldwall.and.
anothee’ negro soldier named ' Boh
Little, Caldwell being ejected
from the car by. Linten, After
reaching the ground:: Caldwell}

pulled a 32-calibre plato) from

his blouse and shot the conductor
through the head, the bullet etrik-
ing about: the chin and ranging
upward, killing the condudtor in-

stantly,.. cate ae
After killing: -the =
Caldwell turned: the sam

on the same .car..and’ who: had

man down, the negro soldier; then

NWeClellan, ran down the car:
toward” Oxford and-=
ward the m On the Weat,
He-waa captured about: two hours

the military police, . detachm
then ationed’ ig
Lieutenant.

tr

in bis hat when he. wag, brought
into the celty. fa F
exploded cartridges, told the story
of the killing of ong man-and: the
serlous..wounding--of another.

' The case or Caldwelty attracted
attention -» in td every.
rate

3 y Baking +; that
‘case de Held up until the atte
general “could «* inveatigete:.%
make @-report-to™ hime:

from many’. societies ; ¢

gohductor
eae : pistol
on Kelaie Morrison, the motorman
Kone to the rear nd: of the ‘our to:
Neoded. After shooting. the. motos

& member of ‘the 167th oes
brigade and ‘stationed “at “Camp

after the. shooting. . by’: Joseph
O’Melia; An -unarmed' ‘nrember: ‘of.

the oltye egy 5
‘John .Q.f\ Swann!
| found the negro’s ‘pistol concealed

1, ond, the two}

era

"bias Batters:
came ‘to the Poorer overnor

Bi

the - countrys eaiee

ft ° Oh ass Ba ead
en rps a ay

‘
p!
a

\e
|

the case to: the ‘United: States A

residing oyor the, olranjt
dered “a special ‘sbeti ie

¢ ned. Beer tena
ee te on: TRI ‘ |

low

served. as a athy Of Ort 4
be hanged ‘on December: 87: 81%

Judge Hugh D.. Metrith:* thea

bons

¢

a:

hy
+

mt Repco Sr

the “was pat'te
eo negro was Put to SealA
1D eraitepathes i bain oe ie
‘gro soldier, bas “attra (

: ' te or
tence have poured: 3 adred an H

- -

ete) on ee Or, either |
Pi C., 38 Years ago;and. bad sery a
ed an-enllatment. inthe
ts o most of. the, e
pram in the Philippine gidands 0
iis body: was turned. Nena pe
Rf, Ballard, the Joos} Bearo: are
iy an 0% the nagro.dead,/and

will be-kuried in: this olty.”* s°

=]


te | dad + 9 ) ale ~ tu 9 & Og

EDGAR CALDWELL’ |
DIES ON GALLOWS

Condemned: Man

! Wife of Linten, With. Child in Arms, Witnesses Death ° of
; ‘Criminal;:Crowd of 2, i200, Hears 45. Minute nee.
; olds Courage to the End .

—_—- ates

——— —

| noon Friday,

Tho trap was sprung by Shawife

i]

iW, FE Parker at four mindtes be-

fore 13 o'clock and the negro svl-}

_dler was pronounced dead in 13
minutes by Drs. Payl D. Vann, BB.
I. Curlee, Booger, Apberry,- Mc-
Craw, Cryer and others, ;

Caldwell was pormitted to ad-
drexs an audience of 2500 Mana ||
‘asaenvled in Tront of the Jall and
apoke fur about 380 minutes, He!
rea,y among other scripture the
23rd Pralm, aang two songs and
delivered an earnest ‘Prayer In cone
clusion,

Tho negro acidier went to the
gallowg to pay the penalty of his
crime with ai firm step and a
amile on hia face. He stopped tn
the jail corridor long enough to
shako hands with a number of his
acquaintances. A touching. scene
7 Was -rendered—when-the-eo
nexro stooped down and spoke
kindly to the Jittls boy of the man
he had killed and shook handa
with the widow, who had cone

frgm Clay aounty . to” .witneas.: the
execution of her husband’, slayer,

After ‘delivering his address,: in |
which —he—advised—mpn, wone?, |
boys and girls to lead cleaner Wyes,
Caldwell and Captain Dallas Holds
er of th eSalvation Army, were
placed In a cell on the lower’ floor
of the jall, and the prisoner waa,
accompanied to the scaffold by
Captain Hodder, who has been his
religious inatructor alnce his cone
finement in the county jail. se

Witnesecd by 200° ~*~:

The execution of the negro wag
witnessed by probably 200 people
|admitted to the jall enclosure and
. by-a-large-number. who had alimbs
ed to the top of thé, taller: bulld=
\Ings on the West alde~ot Noble
| street and the nearby —e on
Thirteenth street es “|

Uolding ‘in hor left arm the: baby girl of Ccoil Tanten, dorm after
| tts fathera death, and holding his little sou by the right hand, Mrs,
Ceell TAnten, widow of the street car conductor killed by Sergeant Ede:
Kar Caldwell on tho afternoon of December 15, 1918 witnessed th cle.
cal xcoution. of the negro. soldicr in the. Calhaun county fall. yard. ag

. Se Parker: ‘pallea the. trigser,.

6
e

The wonderful nerva: exhibited
by the negro ag he spoke ta the
large assembly of people-on the
front. of the jaf impreased every:
body with the sincerity of his
claims to conversion to the relige
fon of Jesus Christ and many men
Hand-women—were_soon_to weep a)
line negro told his story.

Caldwe]! sang the song “We'll
‘understand it better’ Wy anq- by,
and concluded his talk with one
verse of the song “I am going to.
walk and talk with Jesus,” ‘

The condemned negro apoke
feelingly of the kindness shown to
chim by Jailor and Mrs. Farrell,
and. by. Sheriff. Parkér and in bia
prayer before the jail asked that
God's” blessings would .rest upon
all of those who haqjhad charge
of him alnce his Incarperation.

In bidding his attorney, Charies
D. Kline, farewell, Caldwell: made
the statement that the lawyer had
fought -a‘good -fight, and with a
{Qod..-bless.: you,”’..turned in th@
hallway of the jail to accompany
Sheriff Parker tp: the scaffold. His
nect* .¢" broken by the drop and’
the -several—-phyaicians-. present
pronounced him be soa in % lye
mi@utes.

Among the apeotators: ddmittea
to the county ‘Jal were A. H, Bor-
ders and M. W.: Woodrtf?, : eX-,
sheriff's of this county, each: of
whom were called upon to hang
murderers during thelr. terms of
office. Besides the ’w. \ewohertffs
Bherit{ Harolinsof Clay county, M:
B Pettus, Newt. Lindsey,, Captain
Hoiaer, W. T. Pruitt, A.J. jnelen

nd: ; othere® : ’ occupled’,’, the
floor. of ‘the. scaffold | vand, + wite
neased,-the - drop - of: theyrope-as:

: Caldwell's: “Orime... .

ae “orkmo.t or which. athe: negra
was hanged ‘occurred, on! he after-
‘noon. of Sunday,. Decd jar., 4S,
1918,: Ceall: Linten being shot to.


EDGAR C, CALDWELL, hanged Anniston, Alabama, July 30, 1920

"July 29, 1920<-After all other efforts had failed, including a personal appeal of President
Wilson and the legal knowledge of Attorney General A, Mitchell Palmer of the United DStates,
the last hope of Edgar Caldwell, condemned negro army sergeant, disappeared late Thursday
afternoon when Governor Kilby announced that he would interfere with the death sentence imposed
by the Calhoun Circuit Court at Anniston, Caldwell will be hanged Friday at an hour to be fixer
by the sheriff,

"When Caldwell was fighting in the.courst last year, President Wilson urged the governor to do
something in behalf of the negro, When Caldwell appealed to the supreme court, Attorney Gen-
eral Palmer personally prepared a brief in which he attempted to set forth facts which might
indicate that a faar trial had not been had, Hundred of telegrams had been received from other
states requesting executive clemency,

"Every citizen of Calhoun county who has written.a letter has been opposed to any change in

the sentence, Included in the list as pastors of Anniston churches who said the sentence was _
justified by the circumstances surrounding the crime, The wife of the man Caldwell killed, |
Cecil Linton, appealed to the governor to upohold the maximum sentence, Scores of citizens

of Clay County where Linton lived before he moved. to Anniston requested the governor not to
change the sentence to life imprisonment,

"Never before has such a fight been made in Alabama to sage a man's life, After conviction
Caldwell carried the case to the supreme court, When it was affirmed he asked the district
court in Birmingham for’ an order’ which would return his case to the war department for trial, _
his attorneys contending that he, being a soldier in univerm, should have been court mrtialed,
The district court dedlined and the supreme court of the United States as appealed to, but |
it also held that the state courts were supreme out of the actual scene of war.
"Caldwell then appealed to «the governor for a commutation of the sentence of death imposed

upon him by the M#¥x#B, In declining to interfere, Gov, Kilby saids

"tT have carefully considered the record in this case and have given-most’ careful consideration
to the application of the defendant for commutation of the sentence of death imposed upon him —
by the jury. Under the law it -is the duty of the jury to determine the degree of the crime |
and to fix the penalty, The verdict of the jury has been affirmed by the supreme court of

the state and the jurisdiction of the state courts has been sustained by the supreme court of
the United States, The defendant was represented by able counsel, No new evidence has been
offered for consideration, the trial judge and solicitor, in response to my inquiry, wrote

that the verdict of the jury was justified by the evidence, and that the death penalty would

bé the proper punishment. The board of pardons unanimously recommend that clemency be denied,
Believing that the finding of the jury was fully warranted by the evidence in the case, and
that it was randered ‘in strict accordance with the laws of Alabama, I shall not interfere

with the sentence of the courts," AGE HERALD, July 30, 1920.

"Anniston, Ala., July 30, 1920<Edgar Caldwell, negro soldier, was hanged in the Calhoun County
jail yard at noon today for the murder of Gecil Linten, street car conductor, in this city on
Dec, 13, 1918, the execution being witnessed by the widow of the slain conductor, who held

in her arms the little girl born a few months after its father had been sent to the grave by

a bullet from the soldier's pistot,

"Caldwell went to the scaffold with a nerve seldom exhibited by a man being put to death, He
was permitted to address an assembly of more than 2, 500 people in front of the jail before

the execution, The negro read the 23rd Psalm, sang two songs and delivered an earnest prayer
before the large nugiber of people and advised all of his hearerers to live clean lives, to

quit smoking, drinking, gambling and carrying pistols. lhe negro's talk impressed his
hearerers with the sincerity of his pretentions toward Christianity, and many of the audience
wept as the negro told the story of his life.

"The trap was sprung by Sheriff W. E, Parker at four minutes before 12 o'clock, the attending
physicians pronouncing the negro dead in twelve minutes after the drop fell,

"The crime for which the negro paid the penalty was committed in this city on Dec, 13, 1918,

He shot and killed Cecil Lénten, a street car man, during the progress of a row on an Oxford
Lake car and seriously wounded Kelsie Morrison, motorman on the same Care..."

BIRMINGHAM AGE HERALD, Birmingham, Ala,, 7-31-1920.

See 8) Southern 272 and lO Supreme Court 388


"Anniston, July 9, 1920-Edgar Caldwell, the .condemed negro soldier to be executed in the
Calhoun county jail on July 30 has made a full confession of the murder of Cecil Lenten in
writing a letter the the slain.man's widow asking her forgiveness, and makes the statement
that in a vision God has promised him that he will not be hanged for killing the street car
conductor, ,

"The confession of the negro soldier was made in the presence of Captain Dallag Holder and
Envoy W. 0. Self of the Salvation Army and County Jailer W. H. Farrell.

"In his confession just made public the condemned man says that the devil made him fire the
shot that killed the street car conductor on Dec, 15, 1918, and that he would have been
saved 15 years ago if he had gotten into trouble at that time.

"Caldwell advises everybody to refrain from whisky drinking, carrying pistols and fornica-=
tion," BIRMINGHAM AGE HERALD, July 10, 1920,

Montgomery, 5-21-1920-Edgard C. Caldwell, negro sergeant of the regular army, under sentence:

of death for mrdering a street car employee in Anniston, has addressed letters to state off--

icials urging their prayer in his behalf, C. W,. Austin, chief of the state law enforcement

- department, received a letter from Caldwell Friday and in it Caldwell saddhe had made his peace
with his maker but desired the prayers of all good people." AGE HERALD, 5-228=1920

"Anniston, Dec. 20, 1918=Sergeant Edgar Caldwell, Detroit negro, stationed at Camp McClellan

-was indicted for murder in the lst degree by the Calhoun Co. Grand Jury Thursday on the charge
of shooting and killing Conductor Cecil Linten and wunding Motorman Kelsie Morrison,
Morrison, who was shot through the neck by the negro, is improving, His chances for recovery
are very good, according to his physicians," BIRMINGHAM NEWS, Dec. 20, 1918,

"Anniston, Dec, 16, 1918-Tension is high in Anniston Monday following the shooting and killing
of Cecil Linten, street car conductor, and the serious wounding of Kelsie Morrison, motorman,
by Sergt. Ernest Cardwell, of the 157th Depot Brigade, a negro, The shooting occurred when
Cardwell was ejected froma street car, after he had persisted in sitting in the secion
reserved for white passengers. When the negro reached the ground, he turned and fired twice,
one bullet striking Linten in the breast and the other in the head, Morrison came to the
assistance of the conductor and was shot in the breast. He is not expected to recover.
Vardwell, immediately after the shooting, headed for themountains, Soldiers on the car joined
in the chase for him, which lasted until late Sunday night, when an unarmed military policee
man succeeded in capturing him on the hilks southwest of the city. “Be was hurried to the

camp stockade and will be held there until the excitement dies down, Sunday night a crowd

of soldiers and civilians chased a negro porter through the streets of the city, firing several
shots at him, The cause of the disturbance was not ascertained, The negro was arrested and

placed in the city jail," BIRMINGHAM NEWS, Dec, 16, 1918 7


megeen 39 ee

CANTELOU, Benny, black, hanved at Montgomery,

Alabama, March 21, 192h,

Ala.) CANTELOU yv. STATE 893
(98 So.)

th Bek cna
weber bdew tite
rely, "Tate
relief can bo
wrt in this

i@ ABY One,” |

te any one.
qt legal
t oda

They are not prevented hereby from enforc- |

ing their rights, if any, by appropriate rem-
edy. ‘The owners of the bonds for the pur-
pose sought by the bill would be proper but
not indispensable parties. The bond owners
are proper but not necessary parties to this
cause to restrain the payment of the interest
and principal of the bonds, which were ille-
gally issued. The reason for it rests “on
grounds of high expediency.” City Water
Supply Co. v. Ottumwa (C. C.) 120 Fed. 309;
Mock v. City of Santa Rosa, 126 Cal. 330, 58
Pac. 826; Kellogg v. School Dist., 13 OKI.
285, 74 Pac. 110; authorities supra, and Cul-
ley vy. Elford, 187 Ala. 165, 171, 65 South. 81.

[8] The court erred in sustaining the de-
murrers to the bill of complaint as amended.
They should have been overruled by the
court. A decree overruling them will be en-
tered here.

Reversed and rendered.

ANDERSON, C. J., and SAYRE and
GARDNER, JJ., concur.

(210 Ala. 619)

MILLER v. ALABAMA STATE BOARD OF
PUBLIC ACCOUNTANCY et al.
(3 Div. 600.) :

(Supreme Court of Alabama. Jan. 24, 1924.) |

injunction €==83—Board of public accountancy
not enjoined from hearing charges against |
certified accountant.
An injunction to prevent the state board of,
public accountancy from hearing and passing |
upon certain charges preferred against a cer- |
tified public accountant, wherein it is sought to |
have hig license or certificate canceled, will not |
be granted, notwithstanding averments of the!
bill tending to show bias or prejudice on part |
of members of the board. !
\

Appeal from Circuit Court, Montgomery
County; Walter B. Jones, Judge.

Bill in equity by H. S. Miller for injune-
tion against the Alabama State Board of
Public Accountancy and others. From a de-
cree sustaining demurrer to the bill, com-
plainant appeals. Aflirmed.

Miller & Graham, of Birmingham, for ap-
pellant.

James J. Mayfield, of Montgomery, for ap-
pellees.

GARDNER, J, This is an Injunction pro-
eceding wherein complatuant seeks to pre-
vent the board of public accountancy from
hearing and passing upon certain charges
preferred against the complainant, wherein
it is sought to have complainant’s license or
certificate ag a certified public accountant
canceled.

In [Lehmann v. Board of Public Accountan-

that a bill for injunction did not lie to pre-
vent the hearing of charges of similar char-
acter, and affirmed the decree of the court
below dissolving the temporary injunction
and gustaining the demurrer to the bill upon
this ground. In its essential phases the in-
stant case is not to be distinguished from the
Lehmann Case, and upon that authority the
decree of the court below will be aflirmed.
The Lehmann Case was carried to the Su-
preme Court of the United States, and there
approved. Lehmann v. State Board of Public
Accountancy et al. 44 Sup, Ct. 128, 68 L. Id.

od
'. -

Counsel for appellant direct attention to
the fact that in the case now under con-
sideration there are certain charges of ac-
tivity on the part of members of the board
against the complainant so as to show a bias
and prejudice, and render them disqualified
to serve—a question which it is insisted was
not presented in the Lehmann Case.

We are of the opinion, however, that the
authorities sustain the view that the aver-
ments of the bill concerning these elements
of disqualification are insufficient to give the
bill equity as one secking injunctive relief.
15 R. O. L. 541, and authorities cited in note.

It results that the decree appealed from

, will be here affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE. and MII_.-
LER, JJ.,. concur.

: (210 Ala. 648)
CANTELOU v. STATE. (3 Div. 649.)

(Supreme Court of Alabama. Jan. 31, 1924.)

{, Jury @=266(2)—Jmmaterial that only one
judge present at time of drawing of special
venire.

Provision in jury law as to drawing of jury
by two judges is directory and not mandatory,
and it is immaterial that only one judge was
present at the time and place of drawing of
special venire.

2. Homicide €==>268—Guilt of murder held for
jury.

In a homicide case, evidence as to defend-
ant’s guilt of murder held sufficient for the
jury’s consideration, and court properly refused
affirmative charge.

3. Criminal law @=2641(2)—Reception of ver-
dict In absence of defendant’s counsel not
error,

Reeeption of verdict in homicide case at
12, oclovck at night, in the absence of defend-
ant’s counsel, held not error, where the jury
was polled by the judge, and no request was
made by defendant that counsel be present.

4. Criminal law @=-1167(1)—Defendant cannot
complain of failure to prove aliases.

That defendant was indicted under several
aliases which were not proven is not a matter

cy, 208 Ala. 185, 94 South. 94, the court held | of which he can complain, where he was iden-

€=>For other cases see same topic and KEY-NUMBER 1 all Key-Numbered Digests and Indexes


894

tified as the person bearing one of the names
given in the indictment,

Appeal from Circuit Court, Montgomery
County; Leon McCord, Judge.

Bennie Cantelou, alias Cantclow, alias
Cantelope, was convicted of murder in the
first degree, and appeals. Affirmed.

Heirston L. Foster, of Montgomery, for
appellant. ‘

Harwell G. Davis, Atty. Gen., and Edwina
Falkner, Asst. Atty. Gen., for the State.

GARDNER, J. Appellant was convicted
of the murder of Mrs. Susan Mastin, with
the infliction of the death penalty. We will
treat the questions argued by counsel for
appellant in their order of presentation in
brief.

{1} Motion was made to quash the special
venire upon the ground that it was not
drawn according to law; that only one of
the judges of the circuit court was present
at the time and place of drawing said spe-
cial venire, whereas the statute provided
that two of the judges shall draw the same.
In Brown v. State, 209 Ala. 490, 96 South.
475, it was held by this court that the pro-
vision in the jury law as to the drawing of
the jury by two judges was directory and
not mandatory. This authority is conclu-
sive against the contention of appellant.

The insistence by counsel for appellant
that the ruling in the Brown Case is un-
sound has been given due consideration, but
we are not persuaded to a contrary conclu-
sion, and therefore adhere thereto.

[2] It is next insisted that the evidence as
to defendant’s guilt was insufficient for the
jury’s consideration, and that therefore the
court committed error in refusing the affirm-
ative charge requested in his favor. In re-
sponse to this insistence a brief reference
to the testimony will suffice. On February
9, 1922, Mrs. Susan Mastin was on a visit
to her brother, J. J. Davenport, in the south-
western part of Montgomery county. About
2:30 o’clock in the afternoon of that day
Mrs. Davenport left the house and went to
her husband’s store, and upon returning
within an hour she discovered that the safe
in her room had been broken into and rifled,
and upon entering Mrs. Mastin’s room found
her sitting before the fire with her head
beaten and mutilated, and her mouth and
eyes bleeding. Mrs. Mastin died that night
about 9 o’clock without regaining conscious-
ness,

In the safe was a gold watch which Mrs.
Davenport had owned for a number of years,
_ and upon which was engraved her initials.
There was also in the safe a little purse
belonging to Mrs. Davenport, containing $10
or $12; these articles were missing.

Search was begun immediately; a_ stick
was found in the garden, and there was

98 SOUTHERN REPORTER

(Ala.

some evidence indicating stains of blood
thereon. At a distance of about 200 yards
from the house there was found an “over-
coat wadded up in a bundle under the bank
of the ditch’—to use the language of one
of the witnesses; and there was evidence
to the effect there were tracks leading from
the house to the. ditch where the overcoat
was found.

There was evidence from which the jury
could infer the defendant was familiar with
the surroundings, as he had lived on the
Davenport place many years previous; in
1902, 1908, and 1904. A few months after
the crime he was working in this neighbor-
hood with a Mr. MeQuenn—his home, how-
ever, for many years had been in Evergreen,
Ala. The overcoat was introduced in evi-
dence, and identified by some of the wit-
nesses as belonging to the defendant, but
the defendant denied that he had ever owned
an overcoat, but had possessed only a rain-
coat. In March or April following the com-
mission of this crime, the gold watch identi-
fied as that belonging to Mrs. Davenport,
and which was taken from the iron safe, was
found in the defendant’s trunk at his home
in Evergreen. The watch was offered in
evidence. As to the possession of this watch
the defendant gave conflicting statements;
in one he explained that he had found it
while tearing down an old building in Ever-
green; in another that he had bought it
from a white man, a tramp, in Evergreen,
and had given him $5 for it; and in still an-
other statement that he had bought it in
Montgomery, paying $20 for it. The purse
missing from the safe was also offered in
evidence, and identified as being the purse
of Mrs. Davenport. It was found a few
days before the trial in the trunk of the
defendant’s wife, who resided in Evergreen,
but without contents. Defendant’s para-
mour, one Irene Pitts, testified that defend-
ant left Evergreen the first part of the year
1922, and stayed away about a week; that
she did not know where he went, but that
he stated he had gone to Montgomery. At
that time they were living in separate hous-
es. Defendant had shown her the watch,
and had also shown her the purse, and had
given her $4 out of it. There were a few
other details not necessary to note, aS we
think the foregoing is sufficient to demon-
strate that the question of defendant’s guilt
was one for the jury’s determination.

There is nothing in the ease of Malacht
v. State, 89 Ala. 134, 8 South. 104, cited by
counsel for appellant, which militates
against this conclusion, but, on the contrary,
it fully supports the holding here. The af-
firmative charge was properly refused.

This case was given to the jury at 7
o'clock in the evening of the same day it
was tried. Defendant’s counsel remained in
the courtroom until 9 o’clock awaiting the

this nelghbor-
ita home, how-
in Rvergreon,
duced In ovi-
“ of the wit-
‘sfendant, but
1d ever owned
J only a rain:
wing the com.
‘watch identi-
ira, Davenport,
iron safe, was
at his home
‘ne offered In
of this watch

: statements;
had found it
‘ding in Ever-
‘ad bought it

in rercreen,
1 still an-
bOWFnt it in

‘t. The purse
'so offered in
ing the purse
found a few
trunk of the
in Evergreen,
ndant’s para.
' that defend-
rt of the year
n week; that
ent, but that
itgomery, <At
‘eparate hous-
er the watch,
urse, and had
© were a few
» note, as we
nt to demon-
‘cadant’s guilt
ination,
© of Malachi
04, elted by
iho mnllitates
i the contrary,

hore. The af-
refused. :
© jury at 7

same day it
‘| remained in
awaiting the

Ala.) BIRMINGHAM REALTY CO. y. CROSSETT 895

(98 So.)

verdict, and then went to his home, expect- | poration liable for the judgment, on the theory
ing, as he states in his affidavit, to be noti- | that the transportation corporation was merely

fied when the jury was ready to return its
verdict. The verdict was returned at 12
o’clock that night, and counsel was not noti-
fied, and therefore was not present.

[3] Motion was made for a new trial; one
of the grounds most strenuously insisted
upon being that the verdict was received in
the absence of counsel for the defendant.
Affidavits were offered upon the hearing of
the motion disclosing the above-stated facts
without dispute; but it further appears
from the affidavit of the deputy clerk of the
circuit court that the jury was polled by
the presiding judge. Nor does it appear
that any request was made by defendant
that counsel be present. It clearly appears
from our previous decisions there is nothing
in this action of the court of which the ap-
pellant can complain. Griffin v. State, 90
Ala. 596, 8 South. 670; Brister v. State, 26
Ala. 107; Simmons v. State, 129 Ala. 41, 29
South. 929. See,*also, Whitehurst v. State,
3 Ala. App. 88, 57 South. 1026.

[4] That the defendant was indicted under
several aliases which were not proven is not
a matter of which he can complain. He was
identified by the proof as Bennie Cantelou,
one of the names designated in the indict-
ment, and it was therefore not necessary to
show that he was known and called by the
other names. As said in Evans v. State, 62
Ala. 6:

“Tt was sufficient if he was identified as the
person entitled to either of them and known
Dy” ft 32 -

We have here treated those questions
which counsel for appellant has deemed of
‘sufficient importance for discussion in his
brief: but, mindful of our duty in cases of
this character, we have also considered the
few remaining questions presented by the
record, which, in our opinion, are not of suf-
ficient magnitude to call for discussion.

Finding no reversible error, the judgment
of conviction will accordingly be here af-
firmed.

Affirmed.

All the Justices concur.

(210 Ala. 650)

BIRMINGHAM REALTY CO. et al. v.
CROSSETT. (6 Div. 886.)

(Supreme Court of Alabama, Dee. 18, 1923,
Rehearing Denied Jan. 81, 1924.)

Corporations @==548(8) — Bill of judgment

an instrumentality of the realty corporation,
and seeking an accounting between the two
corporations, held not subject to demurrer as
to the accounting phase or so far as it at-
tacked the bona fides of a mortgage between the
two corporations, but subject to demurrer as
to the other phase.

Anderson, ©. J., dissenting, and Thomas and
Gardner, JJ., dissenting in part.

Appeal from Circuit Court, Jefferson Coun-
ty; Hugh A. Locke, Judge.

Bill in equity by George Crossett against
the Birmingham Realty Company and the
Norwood Transportation Company. From a
decree overruling demurrer to the bill re-
Spondents appeal. Affirmed in part, and re-
versed in part, and remanded.

The bill alleges that complainant was jn-
jured in a collision between a fire truck on
Which he was riding and an automobile bus
of the Norwood Transportation Company ;
that in a suit against said company he re-
covered judgment, from which the defendant
appealed to the Supreme Court, without ex-
ecuting supersedeas bond; that said .judg-
ment was-by the Supreme Court affirmed,
and this complainant on April 30, 1921, caus-
ed an execution to be issued and levied upon
certain property of the defendant.

Paragraph 5 is as follows:

“(5) Your petitioner further ‘shows that,
after the levy of execution on the said auto-
mobile busses or trucks of the Norwood Trans-
portation Company the Birmingham Realty
Company, a corporation, did file a claim to the.
said automobile trucks or automobile busses,
which claim does set up the nature of the
claim, which claim as set up is that of a mort-
‘gage, executed by the Norwood Transportation
Company to the gaid Birmingham Realty. Com-
pany on the 26th day of February, 1919, to se-
cure the sum of $25,000, of which mortgage a
copy is hereto attached marked BPxhibit A, and

made a part hereof the same as if set forth
herein.”

By paragraphs 6, 7, 8, 9, and 10 it is alleg-
ed that the respondent Birmingham Realty
Company was incorporated for the purpose,
among others, of engaging in the general
real estate business; that it owned certain
tracts of land in the city of Birmingham,
which it subdivided into residential lots, and
put upon the market for sale, that as a
part of its development scheme this respond.
ent organized the corporation, known as the
Norwood ‘Transportation Company, to oper-

creditor of one corporation against another | 4t¢ motor busses to and from its said subdi-

corporation held sufficient as to only. one
phase. :

A bill in equity by a judgment creditor

visions; that Birmingham Realty Company
and individuals alleged to be in its employ
subscribed for the corporate stock of the

of a transportation corporation against a real-| transportation company, and that the sub-

ty corporation, seeking to hold the realty cor- | scriptions by said individuals were not bona

€=—>For other cases see same topic and KEY-NUMBURK in all! Key-Numbered Digests and Indexes


Augusta Const tichimalist &/5 [72 [io a

yard, He went up the stairs lightly. On the gallows he said that he was satisfied

to die, that he had enjoyed this world and that he thanked all the jail officials, for
the kindness shown to him. -
"Yasser Allen, attorney for Carpenter, made a strong appeal for executive interference _
with the hanging, a reprieve pending further infomnmtion as to the crime, -the negro
claiming that he shot Mr. Camp in self-defense, Mr. Allen was im Montgomery today but
télephoned the sheriff that'‘the Governor had declined to do anything for the negro, The
body of Garpenter was taken in SUELO XGA XA AUR KALE ANE XU AS charge by the
county after -the hanging and was’ sent to the Potter's: field," ‘ADVERTISER, Mon* gomery 5
Alabama, August 7, 1915. 6/5. oe

* \.. p e ( ‘ ‘
"(Special to The  poamarelal Birmingham, Alabama, June 6, = After being out all night dis-

verdict this steed of guilty of murder in the first: degree as Hers in the indictment,
and gave him the death penalty, The negro consulted with one of his attorneys afterwards,
and asked that an appeal be.made, ‘When sentenced is passed next Saturday notice of an
appeal will, be given. Carpenter, after killing, Mr. Camp, escaped to Louisiana, and then
went to Pine Bluff, Ark., where he was arrested and brought back to Birmingham, His plea
was self defense, hs testimony being to the effect that he shot Mr. Camp when the latter.
was striking him with a piece of scantling, The negro said he went to Mr, Camp and asked
for all the money due him, © This brought'on the quarrel, and the white:man hit him, the
negro claimed, whereupon he drew his pistol and MAMXXWUXM¥H killed Mr. Camp, He denied
that he went off and got a pistol, but that he had the weapon with him and when struck, by
a scantling, pulled the pistol and fired," ADVERTISER, Montgomery, AL, June Ty 19 (10)

"(Special to The Advertiser.) Birmingham, Alas, May + a Millard Carpenter, tise: negro who
shot and killed J, T. Camp, the well known transfer man, several months ago, following a
little difficulty in reference to pay, willbe behind bars in the county jail in Birming=
ham tomorrow, Chief Deputy Sheriff Walter Metcalfe and “Deputy Sheriff Chris Hartsfield,
being on their way from Pine Bluff, Ark., with the prisonerg Carpenter admits the killing.
The killing followed a dispute as tid ahe half. day's pay, Camp .ordering the negro out of .the
office, The negro went off and«got a pistol and shot the white man down. In the ‘excitee
ment Carpenter got away. He was located recently at Pine Bluff and ike hae brought:
about." ADVERTISER, Montgomery, AL, May 18, _ (2/6. a |

* *

Sfisrert Champs o* THepl qos -_

oe , Liz slides a ;
Creer tine) (At. Kangedat TaoerlareeF5 Bie se

‘ety fesooteosny pesuey SyoeTq Suyor “YmMINAdUVO

*SO6T *€z une §

69 SOUTHERN 521

CARPENTER, Millard, ‘black, hanged ati Birmingham, Alabama, on August 6, 1915. }
"Millard Carpenter,’ negro, ‘was hanged in-the jail yard Friday morning for the killing of
J. T, Camp, well-known transfer man, Oct. li, 1913, The negro refused to come from his cell
at 9 o'clock Friday morning and at first it was believed he would attempt some violence, ©
He was finally persuaded to come out and dress and the execution took place soon afterward.
The drop fell at 10:56 o'clock. | : Pont me. |
"Sheriff Batson received word from Montgomery Friday morning the Governor would not
interferes >? aS oe ae ;
"after Carpenter was induced to come out of his cell, he dressed deliberately. He
was stillia little excited. Looking around the little room on the second story of the jail
puilding, he saids:'I'm not scared; no, not of anybody. I am not. scared, of 5,000 men, I
know I've got to die, but under the circumstances, any, man want to shay as long ashe can,
and I do, “I appreciate what Mr, Allen has done for me, I don't want to hurt anyone,!

"Carpenter then took off his old clothes deliberately and put, on the others. Around
the room stood a number of deputy sheriffs, prepared for any emergency. | Among those.
back of Sheriff Batson were Deputies Knight, Hartsfield, McDuff, Martin, Harris, Be-
Jamett, McAdory, Cochran, and others. Ellis Brown, attorney for the sheriff, was also
in the room, — ah ho Go Tens atct .

"The usual crowd witnessed the execution. At 10:45 the death warrant was- read. At.

10:53 Carpenter mounted the gallows. and the trap was sprung .at 10:56 and, eighteen

minutes later the negro was pronounced dead. ©... peyethy gor bantk foo
"Mrse J. T. Camp, widow of the man Carpenter killed, and her daughter, with a brother of
the dead man and other relatives, witnessed the execution, and a piece of rope was -

taken by a member of the family, Ta .

"The county's ambulance was’ present and the bedy was placed in a rough coffin and _ .

will be buried in the Potter's field." | bs" 7 e ee J
NEWS, B,rmingham, Alabama, August’ 6, 1915 (2:1.) e ( O22

gta,

".,.The negro claimed that Mr. Camp .had assaulted him with a piece of scantling which caused
the shooting. “Carpenter made his escape after the shooting, but was apprehended Fein t
in Arkansas and brought back to Birmingham, A number of requests have been. received
by the Sheriff for cards of admission to the jail yard to witness. the execution, but.
only the usual number will be admitted, e.eThe negro is being represented by Vassar
Allen/' NEWS, B rmingham, August 5, 1915 (15-1. )

"(Special to the Advertiser.) Birmingham, ALA, Auge 6. - Millard Carpenter, negro was
hanged this mokning in the county jail yard for the murder on October lh, ¥913, of Je Te
Camp, a well-known transfer man, The negro mountdd the gallows at 10:55 o'clock and 18
minutes after the trap was sprung was pronounced dead, The usual crowd of deputies and
others watched the execution, Mrs. Camp, widow of the deceased, and his daughter and a
sister, besides the brother of the deceased, attended the hanging and stood within a
few feet of the gallows. A piece of the rope used in hanging the negro was given to
one of the members of the family.

"when deputy sheriffs and Sheriff Batson went to the condemned man's cell at 9 o'clock
this morning to start on the preparations for the execution, Carpenter, who was in a
cell with Joe M illins, another condemned negro had barricaded his cell door and had
gotten a piece of steel from off his cot, He defiend anyone to enter the cell,

"The negro was told by the several deputies that if he attempted to hurt anyone he
would be shot down. Pieces of pipe, pistols and other weapons were held with the belief
that the negro might attempt something desperate, A heavy piece of sca ntling was
goteen and efforts made to batter down the door, Rev, Father Malone, a priest, went up
to the cell and urged the negro to give up quietly, Finally the negro gave in and

came out of the place though there were several drawn revolvers read to use on him

in case there was any effort to do anyone bodily harm,

"The negro began dressing himself and still excited, said that he was not afraid of
anybody not even 5,000 men, but he cooled down and said that he would not hurt anyone.
He asked one of the deputies to take his picture and aend a copy to a brother and give

one of the condemned negroes one also, He smoked a cigarette in the office just before
the death warrant was read to him, He was handcuffed as he was led from the jail to the

NO APPEAL

CARTER, Ira, black, hanged St. Stephens, Ala., on January 1, 1905,

Nccording to the JOURNAL, Atlanta, Ga., of November 25, 190), Ira Carter, black,
convicted of the murder of Conductor Askew of Birmingham and to be hanged. His
brother, Bill C., sentenced to the penitentiary for 12 years of his participation
in crime,

"(Special Dispatch to the JOURNAL.) Birmingham, Ala., June 10, 190). = From facts
which have come to Mrse Je Ae Mayo, of this city, mother-in-law of the late Steve
Askew, conductor on the Mobile and Ohio, who was murdered by a gang of negroes on

an excursion, it appears that the assassination was a deliberate act and was commit-
ted in order to rob Mr, Askew who had $320 in money and $600 worth of diamonds on
his person at the time he was killed. It seems that the negroes who killed him
pretended to be drinking, but were really sober, The railroads have returned $100
of the money taken from Mr. Askew, but the AXAM4XX diamonds have not be recovered,
One of the negroes shot in the melee has since died and it is alleged that he made

a clean breast of the whole affair,"' JOURNAL, Atlanta, #eorgia, June 10, 190)

(h/he)


y 9 lack, hanged Jett
lor, b zed J.fferson Co, Jail, Birmingham, Ala, 9-519

—_—_ .

Sib NE CEE Beds epi oi aa ‘
i a AR Reet PN PER ene NR MAS a ety eh
ATi ati WPM RLS a he RAY es

i

ERE ES ele elsy

| Charleston's Neck Was
4 | Broken by the |
o Drop. ‘y
) : i

epee ntti Mt

PRAYED ON GALLOWS.

eee enaneninmepieocin

Professed Religion and 8)
4 Certainty of Heaven:
Fifteen Preachers

cage emma

licid Services. |
|

| SHORT STORY OF THE CRIME.

San ed

at 32:23,
Charieston died *
ing goes, and professed
figion, bis Sying prayer bef
dead mother might
onion deyot in the greet
came ~ bursting into peaven.”
The execulion took place in the reat
of the jail, aod wae witnessed by 62
gnusosiiy larae number of people, the
’ jait yard deing crowded with apecta- e
. tart, where a view could be bad of \
the gatiows. Heveral sheriffs and other
officials trom other counties than Jef-
ferson were preaent
FIFTEEN MINISTERS.
sre before his exe- | fF
was wept ia the) f

*
oa song?
of prayer were offered
teré tiemking petitions t
videm hed tian

- teen Charleston |


(fottble SLAVES

Four Slaves, black, Dallas Co., circa 1853.

“Alabama: Four slaves were condemned to death during a recent sitting of the Circuit
Court at Cahawba, Alabama.”-Picayune, New Orleans, LA, 11/18/1843.

The following from an un-named newspaper, probably from the Carolinas, dated
8/30/1843, is probably the case: “Atrocious Murder.-One of the most plainful duties we ever
performed is now before us - in recording the melancholy and tragical murder in this county, on
the 11th inst., of Mrs. M. A. Chapman, wife of Mr. Joseph Chapman, and daughter of the late
Col. Bernard Johnson. The circumstances attending this most unfortunate and heart rending
occurance are thus detailed to us by a friend: During her husband’s absence from home, she was
by some means enticed by the negroes into a corn field about 150 or 200 yards from the house,
and there murdered by one of them, by means of a rope thrown over her neck in a kind of running
noose. After being thus strangled, she was carried to the opposite side of the field, dragged over
the fence so violently as to leave some of her hair torn out upon the rails; and thence taken some
60 yards further into a thicket, and the body then concealed under the bark and rotten pieces of an
old log. This occurred, it is supposed, between 10 and 11 o’clock in the morning. Mr. Chapman
came home about the usual dinner time, and enquiring for Mrs. Chapman was told that she had
gone to visit some of the neighbors. He consequently experienced but little uneasiness about her
absence, and thinking it a little strange at the same time, that she should ride an animal of which
she had usually been afraid. He awaited her return until dark when, she not appearing, he ordered
his horse and thought that he would ride over to Mrs. Newman’s, her aunt whom he had heard
her say she intended visiting. Not finding her there or at any of the neighbors’ houses where he
went, he became alarmed, suspecting that all was not right. Procuring the assistance of some
neighbors, he arrested three of the negroes; search was made that night, and on the following day,
when she was found in the situation above stated. The horse, he was told she had rode was also
found in a thicket about a half a mile from the house, with it’s brians knocked out by a piece of
wood.

“Mrs. Chapman was in the 23rd year of her age, and left a husband, two brothers and
three small children (the youngest an infant of 6 months) to mourn her lost. In this irreparable
loss a wide breach has been made in the bosom of her friends and relatives which time cannot
efface, or memory forget.

“Much excitement, we understand, was produced by the circumstances, and at a meeting
of some 400 or 500 citiznes, the question was submittede whether the negroes should be burnt
upon the spot of the murder. Much to their credit, however, it was agreed that the law should be
permitted to take its course, and the negroes were accordingly committed to jail on Tuesday last.
Thye principal in the tragedy says that he killed his former master in another State, and was run
off to this.-Se/ma Free Press.”


910

prepared in ‘the South Alabama Institute, at
Thomasville, and was graduated from the
University ‘of Alabama, LL. B., 1907. He
was licensed to practice law, in 1907, and
located: in Clarke County, forming a part-
nership with his father, under the firm
name of Johnson & Johnson. He was elected
city attorney of .Thomasville, 1907; and has
served as a member of the board of education
of Thomasville. He is a Democrat; a Meth-
odist; a Knight of Pythias; and a Woodman
of the World. Residence: Thomasville.

JOHNSON, BERNARD, pioneer physician,
legislator and militia colonel, was born August
5, 1782, in Greene County, Ga., and died Feb-
ruary 7, 1848, in Dallas County; son of Thomas
and Agnes (Greer) Johnson, the former of whom
was born March 10, 1742, in South Carolina, re-
sided in Greene County, Ga., and died there,
March 5, 1816, served as a lieutenant in the
Revolutionary War with troops from Georgia,
the latter was born in Pennsylvania and remov-
ed with her parents to South Carolina, thence
to Georgia, and died in Dallas County, Septem-
ber 5, 1820. The ancestors of Dr. Johnson
came from the highlands of Scotland to Geor-
gia with Governor Oglethorpe in 1732, and
were descended from Sir Gilbert Johnson of
the Johnson clan, seated in Scotland, 1292. Dr.
Johnson was educated in the schools of Georgia
and studied medicine in that state. He prac-
ticed ‘his profession in Georgia and later re-
moved to Dallas County where he was a pio-
neer physician. He built the first grist and
saw mill in that section. In 1826 he served
in the Alabama legislature, and was colonel of
“B” regiment of militia which was called out
to serve as escort to General Lafayette, on his
visit to Cahaba. He was a Democrat and a
Presbyterian, Married: (1) in December, 1814,
to Sarah Ann, daughter of A. B. Taylor, a
descendant of James and Frances Taylor, the
former emigrated from Carlisle, England, to Vir-
ginia, between 1650-67, also a relative of Presi-
dent Zaohary Taylor; (2) Sarah Craig; (3)
Martha (Norwood) Hines. Children: 1. John
Gilbert Greer, born 1818, in Dallas County,
served in the C. S. Army, m. Elizabeth Evans,
and whose grandsons, Gilbert Lee Boyd and
Coleman Davis Boyd, of Glasgow, Ky., were
respectively in the U. S. navy and 32nd divi-
sion, A. E. F., in the Meuse-Argonne offensive,
during the European War, and was a member
of the Army of occupation following the ar-
mistice; 2. Cummins, a soldier of the Mexican
War, d. unmarried; 3. Mary Ann, m. Joseph
Chapman, and was murdered by negroes in
1843, their son, Alonzo Chapman, Confederate
| soldier, was killed in the battle of Seven
L Pines. Last residence: Cahaba.

\\JOHNSON, B..C., major, 31st, Hale’s, Ala-
bama infantry regiment, C. S. Army.

* JOHNSON, ‘CROCKETT WESTMORELAND,
teacher, was born November 29, 1881, at Mt.
Rozell, Limestone County; son of John Wiley
and Hatnah Susan (Davis) Johnson, the for-
mer a native of near Pulaski, Giles County,
Tenn., who removed to Mt. Rozell, where for

2 cat eH, «a AAT WOP

DICTIONARY OF ALABAMA BIOGRAPHY

many years he was a teacher, farmer and bast
ness man, holding local office, finally settling ta
Florida where he engaged in merchandising:
grandson of Pascal and Emely (Jackson) Jods
son, who lived near Pulaski, Tenn. Mr. Jods
son received his early education in the public
schools of his native county and in the private
schools conducted by Col. Gaines C. Smith
Johnson White and W. M. Mathews. He grade
ated from the State normal school, Florence,
1908. He began his professional career in Law.
derdale County, 1902, being principal of the
Pine Hill academy. Two years later he was
made principal of the public schools of Head
land, Henry County, and superintendent city
schools of Mt. Pleasant, Maury County, Tear,
1908. Four years later he removed to Colum
bia, as principal of the Houston County high
School, a position he now holds. He is a Dems
crat; Baptist; Odd Fellow; Knight of Pythias:
and Mason. Married: August 28, 1908, at Head
land, to Willie Eugenia, daughter of Lawwe
Andrew and Georgia (Boyer) Whigham «¢
Headland; granddaughter of Samuel Whigham,
who came to Barbour County, in 1850, from
Georgia, a large land owner and planter, vee-
eran of the Mexican War, and a Presbyterian
and of George Bower, great-granddaughter ef
James Bruce and Jonathan Thornton, the latter
a Confederate veteran, merchant and planter of
Eufaula, and descended from a line of Baptist
preachers. Children: 1. William Westmore
land; 2. Lawson Whigham; 3. Crockett Wiley,
Résidence: Columbia. :

JOHNSON, EDWARD H., physician, was
born in 1845, in Troy; son of Dr. Osborn S. and
Eliza J. (Hobdy) Johnson, the former of whom
was born in 1820, in Marion County, Ga. was
graduated from the Medical college of Augusta,
M. D., 1841, moved to Pike County, and prac.
ticed at Monticello until the county seat was
moved to Troy, practiced at Troy until aboat
1855, and moved to Mt. Ida, Crenshaw County.
dying October 17, 1867; grandson of Edmund
Hobdy, a pioneer and planter of Pike County.
He attended school at Troy and Mt. Ida, and in
1862, joined Co. E, Fifty-six Alabama infantry,
C. S. Army. After eight months service at
Mobile, he operated in north Mississippi and
Tennessee, intercepting Gen. Sherman on his
way to Chattanooga, joined Johnston’s army in
north Georgia in 1864, and fought all the war
to Atlanta, following Sherman into North Caro
lina and surrendering with Johnston. He re
turned home most of the way on foot, and
worked on a farm during the summers of 183
and 1866, attending school in the winters. He
read medicine with Dr. Benjamin Meadows ia
Crenshaw County; took a course of lectures in
Atlanta, Ga., in 1868; and was graduated from
Washington university, now the College of
medicine and surgery, at Baltimore, Md., in
1869. He located at Rutledge and practiced
medicine until 1888, when he moved to Troy.
He is a member of the State Medical Associa-
tion; was for some years president of the
Crenshaw County Medical Society, and a mem-
ber of the board of censors of that society;
has been president and a censor of the Pike
County Medical Association; was at one time

His7apy DoF ALABAMA t¢ DicTe on ARY ae AhA RAM |
fe (2106 RAPHY, :
: Ch_Ca Zo . Jf Clatto

io .
_
_

J

onneron


CHAPMAN SLAVES Dallas Co., AL 1843

Alrocious “Murdé?.—one of the most
paipful dutics we ever performed is now
before ue—in recording the melaucholy
‘and tragical murder in thitcouuty, on the
Atth fast,of Mrs. M.’ A. Chapman,wife of
Mr, Joseph Chapman, aud daughter of

ithe laté Col. Bafoard Johusoa. The
| cirédmetnnces attending this moat vnfortu-
nate andrheart rending occurrence, are
thus detailed to us bya friend: During
her husband’s absenes from home, she
.was by sonve.creans enticed by the oegroes
into # eort field about 150 or 200 yards
from the Meus, and there murdered by
ond of them, by means of @ rope throxn
over hér geeh in a kind of running noose.
Aftor bolog thus strangled she was carried
to the oposite vide of the field, dragged ever
tho fence so vbolohtly as to'leave some of
her hair toyn out upon the rails; and thence
taken some 60 yards hiirthetinioa thicket,
and the hody then concealed under the
bark and routed. pieces of an old log. This
oceurred, it & supposed, betwaen 1 Am
‘| LL o,clock ia the morning. Mr. Chapman
came home about usual dinner time,’ add
enquiring for Mré. Chapiino, Was told tBat |
she had gone to vistt somé of thd neighbors.

He conscquently expericnced’ but’ litsle

unéhifiede abobt her absonce, and thig -
ing it'm little’ 'st¢ange nt the samé time,
that she should ride a0 animal of which
Hehe had usually peen‘alraid. . He awaited
bec reture uotil dark. :wheo. she not; ap-
peering he ordered bis horse and thought
he’ would ride ‘over tn Mra. Newman's,
her stint ‘Wwhont he had heard her sny she
‘intended visiting. “Nor finding her there
orat any of the néighbor's Houses where
be went, he became alarmai, suspecting
that all; wea not tight. Procuring the
‘assistance of some neighbors, ha arrested
‘thres of bis negroes; search wae ‘made
thal ‘aight,:“and' on the follwing ‘day,
when sbe tes tonnd fi the situation above,
stated, | Tha Horse he was tuld sho had.
rade wid-also' fyund in.¢ fhickey, abou’
ahaifn mila froin. the house, .with ite’
rain, knocked’ out by a large piece’ of
timbers fu, i hee, fit aw. 4 ec, vege 8
: Mrs. Chapman was in the 23d’ yerY. ‘of
‘hof'agé, and lef a husband, two, brothers
‘and three email childten.(the youngegt,an,
iinfanfof 6 nianths) to mourn ber lost. fin
‘this irreparable loss a. wide breach -has.
‘been thade fa the boeom of. her friedds
and relatives which Hime. cacnot efluce, ar

.

-_—— —_— A

A060 me Ae Bo eH ee

Caza eH-a

&

7 —_— — — em. a Fe ge

- rae -

me Qry.. orgot. a Sea SS Oe TP |
; Much exctiempnt,. we understaud;: tas
F produced by, te E Tpamotanioes, aud ata
‘meeting of some 400 or, 500 citizeus the
question, Was, suboutted whotber,.:the,
‘hegrove should he buroy upon the spot. of.
‘the mardey. Muctrtotheircredit, however,
it wad dgtoed thac thé law should be .per-

‘mitted to-take its‘Course,-and the negrues

word ccardingiy. commivied ;to ail -on

Téedday levi ~The principat jh the trag-

edy says that hb killed vis former master |:
ia. mporter State, god was rua off ta thisy
—Selma Free Preste oe eho Se |
aah oe LDS LOS |” eammabahepemedndeenatinenadl, pelbi kg of . >]

was 8 p

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O4 SUPREME COURT

[Adler v. The State ; Pause v. The State ; Simon v. The State.]

priate charge. We need scarcely add, that the fact, if such
was the case, that Berry claimed that he was twenty-one
years old, was only evidence to be weighed by the jury.
Good faith in acting on such information and other evidence
in the cause must, at last, furnish the test of innocence.
Prima facie, if the defendant sold or gave spirituous, vinous,
or malt liquor, to a minor, not having a physician’s prescrip-
tion authorizing it, under the statute, he was guilty. He
was then brought within the letter of the statute. It was for
him to show that ke.did not fall within its spirit, unless such
inference arose out of the evidence offered against him. The
charge asked in this case should have been given.

4. In the case of Moritz Simon, the charge asked should
not have been given. The consent of the father, given to his
minor son, that he might drink lager beer, affords no excuse
to one who sells or gives it to him. In this case, no ques-
tion is presented which authorizes us to inquire whether

[Dec. Term,

lager beer is or is not a vinous or malt liquor. The suffi- -
ciency of the evidence is not before us.

5. In the case of Julius Pause, three charges were sever-
ally asked and refused. The first asserts the proposition,
that the jury must acquit, even if convinced beyond a reason-

able doubt that the defendant sold or gave away vinous or

malt liquors, unless the finding goes further, and ascertains
to which of the two classes, vinous or malt, the beer belonged.
This is too narrow a view of sections 4123, 4125 of the Re-
vised Code. Those and kindred sections had two aims: to
dispense with cumbrous prolixity in pleading, and to avoid,
to the extent of their terms, acquittals on purely technical
ounds. Ifthe beer belonged to either class, it is immate-
rial which. The offenses are the same, the punishment the
same. This charge was rightly refused—S mith v. State, 52
Ala. 384.

6. Charges numbered two and three assert, substantially,
the same legal proposition. The jury convicted on only one,
the fifth count in the indictment. Evidence was introduced
before the jury of a sale of lager beer. This was an election
by the State to prosecute the defendant for that act; and
the conviction on the one count must be referred to that evi-
dence.—Cochran v. The State, 30 Ala. 542. These charges
should have been given. Vinous liquor, ex vi termini, means
liquor made from the juice of the grape. The charges, prop-
erly construed, assert no more than the familiar principle of
the eriminal law, that to authorize a verdict of guilty, the
jury must be convinced beyond a reasonable doubt that the
defendant did the act denounced in the statute as criminal.

The judgment in the case of Moritz Simon is affirmed. In

Vou. Lv,

‘OF ALABAMA. «OB
[Childs v. The State.]

cS a re

~ the cases of Leopold Adler, and Julius Pause, the judgments
are reversed, and the causes remanded. Let the prisoners
remajn in custody, until discharged by due course of law.

: : ; ae
Alar
es. S Childs ”. The State.

_. Indictment for Murder.

‘1. Sufficiency of certified transcript, on change of venue.—On change of venue
in a criminal case (Rev. Code, §§ 4209-11), it is not necessary that the clerk’s
_~ certificate to the transcript should be under his seal, private or official ; nor is
it any objection to the transcript, that it is made out and certified by him in
* the county to which the trial is removed.
2. Relevancy of evidence showing motive; proof of indictment.—Where the
* evidence against the defendants, as the perpetrators of the murder, is entirely
reumstantial, the fact that a prosecution for larceny was pending against
them at the time of the killing, and that the deceased was the prosecutor and
principal witness against them in that case, is relevant and admissible evi-
‘dence against them, as tending to show a motive for the commission of the
* ‘crime ; but the indictment and its contents cannot be proved by the oral tes-
mony of the clerk and the solicitor.

3. ‘Prior declarations of witness; admisssibility of, as corroboratory.—Declara-
ions, verba] or written, made by a witness out of court, are not admissible in
orroboration of his testimony on the trial.

_ 4. Competency of wife as witness for husband's co-defendant.—Where several
+ defendants are jointly indicted and tried, the wife of one of them is not a
» competent witness for the others. .

-. From the Circuit Court of Henry.

— Tried before the Hon. H. D. CLayron.

The defendants in this case, Jerry Childs, Isaac Childs,
nd Jacob Childs, freedmen, were indicted in Dale county, in
March, 1876, for the murder of Mrs. Rosanna You; and
their trial was removed to Henry county on their own appli-

ation. “The defendants objected,” as the bill of exceptions
~ states, “to going to trial upon the transcript from the Cireuit

Court of Dale,” which was first offered in evidence against
hem; “and the court sustained their objections, and there-
“upon ordered Joseph A. Adams, the clerk of said Circuit

Court of Dale, who was then present in Abbeville, to make
‘out another transcript instanter. Said Adams then made
out a transcript, and affixed his signature and official seal

and certificate, in said town of Abbeville, in the said county
‘of Henry.” The defendants objected to going to trial on
. this transcript, on the ground that said Adams had no right,
© outside of Dale county, to make and certify a transcript of
tne records of the Circuit Court of that county, and that his

SkEIer H qooep ‘oeest *SC'ITHD

38

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"Abello, Ad as Je) Gousloane Nj x | prot Childe,

Jdores., loser & (uu ry wee
cela. yy Mtr. ty Mp kui pronase 2

hot 1 600 | is eae luce Calin aud Colke

AA WIG WO G29 D ora CTCL Q dazk
teow o faor, tu Y Jeeet- thd UAdaac
Ce

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Peee ad ey diy arid trbd tro ar uithkoed
hosttaway: | Kk pais thay Wrenre nee ee, but

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mst: AT D8 er ene’

SUPREME COURT

[Childs v. The State.]

had any motive for taking her life, and whether they bore :

malice to her. Its sufficiency is matter the jury must deter-
mine; of its admissibility there is no doubt. But, in receiv-
ing oral evidence of the indictment, and its contents, the
court erred. er

3. The court also erred in permitting the witnesses Gar-

ner and Daughtry to testify to the declarations made to them _

by the witness Barnes, corresponding to his testimony on

the trial. After a thorough examination of the authorities,

in Nichols v. Stewart, 20 Ala. 358, it was held, that declara-

tions, verbal or written, made by a witness out of court, as a

general rule, are inadmissible in corroboration of his tes-
timony on the trial of a cause. This case does not fall

‘within any of the recognized exceptions.—1 Greenl. Ev.

§ 469.
5. Itis well established that the wife of one of several

‘defendants, accused of a crime alleged to have been jointly ©

committed, is an incompetent witness, when all of them
are on trial, for any of his associates.—1 Bish. Cr. Pr. $1019.

We find no other errors in the record, than those already
noticed. For these, the judgment must be reversed, and the
cause remanded. The prisoners will remain in. custody,

until discharged by due course of law. ,
: és mG

Childs v. The State.
Indictment for Murder.

1. When witness may testify to character.—A person who says that he knows
the character of a witness, “but never heard his character discussed,” is com-
petent to testify in reference to it. :

2. Proof of pending indictment.—When it becomes material to prove the fact
that an indictment is pending in another county, and its contents, the proper
mode of proving it is, not by the production of the original, but by an exem-
plification duly certified.

3. Excluding evidence once admitted.—The practice of permitting illegal evi-
dence to go to the jury in the first instance, and afterwards withdrawing it
from them, ought to be avoided ; but, where the record shows that it was
withdrawn from them, and they were instructed to disregard it, this cures the
error of its admission. ,

4. Proof of venue.—Where the bill of exceptions purports to set out all the
evidence adduced on the trial, bnt does not show that the venue was proved,
the defendant may take advantage of the omission by a request for a general
charge on the evidence. This is now the established practice, and the court
does not feel at liberty to depart from it in the case of a capital felony, though
it would be inclined, if the question were new, to require that the attention of
the primary court should be specially called to the omission.

Vou. Lv.

Petre oy [Childs v. The State. ]

“From the Circuit Court of Henry. | a
~< Tried before the Hon. H. D. CuayTon. _~

~The defendants in this case, Isaac Childs, Jacob Childs,

and Jerry Childs, were indicted for the murder of Mrs. Ro-

ganna You. The case was before the court on a former day

of the present term, when the judgment of conviction was

‘reversed, and the cause remanded, as shown by the report

~~ of the case, ante, p. 25. On the second trial in the court below,
*-“as shown by the present record, several exceptions were.
“reserved by the defendants to rulings of the court on ques-
‘tions of evidence, and other matters, which the opinion of
this court readers it unnecessary to set out at length; and

“these are the matters now urged as error.

‘Jas. W. Oares and Jno. W. Fosrer, for the defendants.

ve

0. W. A. Saxrorp, Attorney-General, for the State.

“MANNING, J.—The exception to the ruling of the court
~ refusing to exclude the testimony of the witness Cassady,

touching the character of Mingo Williams, another witness,

cannot be sustained. Mr. Cassady had first testified that he
= “knew the character of Mingo Williams,” and that so far as
he knew it was good, and he thought he would believe him

on oath in a court of justice. To all or any of this no objec-
tion was made. But having said, on cross-examination, “I
know the character of Mingo Williams as well as I do any
“negro, but never heard his character canvassed,” defendants
“moved to exclude the testimony of Cassady, on the partic-
ular ground that he did not know Williams’ character. If
~~ the answer made on cross-examination were all that Cassady

said in respect to his knowledge of Williams’ character, it
~~ would not appear that he was a competent witness to sus-
* tain it. But he had previously declared he “knew” it. And
his answer to the cross-examination, as to how well he was
acquainted with Williams’ character, imports that he knew
it as well as he could know that of a person belonging to his
‘class in society; meaning, doubtless, a person so obscure as
“not to be much talked about,—although he might be very
‘well known to the witness. It is not necessary that the
latter should have heard the character of Williams can-
vassed. Hadjo v. Gooden, 18 Ala. 719. The objection of
defendants did not go to the points discussed in Ward v.
~The State (28 Ala. 53), concerning the form of the question
-~ or answer—whether it should be confined or not to the char-
acter “for truth and veracity ;” but was based upon the idea,

bonnets

;
bie BS 3

stipe

+
tees

Tei iti8h3 beget tees

Bit.
ii ity

Hy

ith

oe
a
$s

pelea

t

aH

H

wert eet cl ta tate bei
Preis:

Hs iit

~ SUPREME COURT
{Childs v. The State.]

ae

(Dec. Term, :

. certificate was informal and insufficient. The eburt over-

ruled the objections, and held the transcript sufficient; to
which exceptions were reserved by the defendants. Re

The defendants were tried jointly, and each pleaded not
guilty. It was proved that the deceased was shot and
killed, in her own house in the country, soon after supper on
the night of the 7th of January, 1876, by some person who
fired a gun, loaded with buckshot, through a crack between
the planks on the side of the house. She had moved into
the house late in the evening of that day. Her daughter,
about seventeen, and her son, about fourteen years old, were
in the room at the time she was killed, and no other person
was present. The evidence against the prisoners was cir-

-eumstantial. The State offered. to prove, by the solicitor

and circuit clerk of Dale county, that an indictment was
pending in said county at the time of the killing, against two
of the defendants, Isaac and Jacob, for the alleged larceny of

corn belonging to the deceased, and that she was the pros-

ecutrix and principal witness against them. The bill of
exceptions does not state the connection in which this evi-
dence was offered, nor the purpose for which it was offered.
“The defendants objected to this evidence, because it was
illegal, and because it was proving the contents of the indict-
ment by parol; but the court overruled their objections, and
the defendants excepted.”

It was proved, on the part of the State, that the deceased
had rented the house and land, the preceding year, to the
defendants, Isaac and Jacob, who had a dispute with her
about the rent, a month or more before the killing; and said
Jacob had moved out of the house a few days before she
moved into it. The State also proved threats made by said
Isaac and Jacob against the deceased, growing out of this
dispute. Harvey Barnes was introduced as a witness for the
prosecution, who testified to a conversation between the
defendants in reference to the killing, which he overheard
one night, while he was confined in jail with them; and also
to subsequent declarations made by them to him, and threats
made by them against him, in the same connection, all of
which he had repeated to one Garner, the jailor, and J. F.
Daughtry. On cross-examination of this witness, he admit-
ted that, in conversations with the defendants’ counsel, he
had said that all his former declarations, as to said conver-
sation, threats, etc., were untrue; and in this connection he
then said: “TI lied to him then, but I have told the truth
here. I was talking then, but now I am swearing. I
tell lies to keep along with my friends; will lie to protect
myself. I lied to him, because I thought he was pumping

Vou. LY.

tie

* OF ALABAMA. .
Se eee [Childs v. The State.]
ne, and I did not know that he was my friend.” Said Gar-
ner and Daughtry were afterwards introduced as witnesses
‘on the part of the State, and testified to declarations made to
hem respectively by said Harvey Barnes, in reference to the

onversations and statements of the defendants, agreeing
ubstantially with the testimony of said witness on the

“In the further progress of the trial, the defendants Isaac
and Jerry offered to introduce Emeline Childs, the wife of
the defendant Jacob, as a witness for themselves, to prove
“facts material to their defense; but the court sustained an
objection by the State to her competency as a witness, and
said Isaac and Jerry excepted. In the same way, and for
“the same purpose, the defendants Jacob and J erry then

offered to introduce Florence Childs, the wife of the defend-
-ant Isaac, as a witness for them, to prove material matters
~ in their defense; but the court sustained an objection to her

= competency, and said Jacob and Jerry excepted.”
* Numerous other exceptions were reserved by the defend-
sants during the trial, but the opinion renders it unnecessary
‘notice them.

‘Tas. W. Oares and Joun W. Foster, for the defendants.
Iyo. W. A. Sanrorp, Attorney-General, for the State.
BRICKELL, C. J.—We do not discover that the certified

transcript of the original indictment and proceedings thereon
in the Circuit Court of the county of Dale, was defective. It
seems sufficient; and if it was not, the defects were cured by
the second transcript. It was not necessary that the clerk's
~~ certificate should have been under his seal, private or official.
-* Bishop v. State, 30 Ala. 34. Nor was the second transcript
objectionable, merely because it was made out and certified
by the clerk in the county of Henry. In Collier v. State, 2
Stew. 388, it was held, a clerk could, without his county, cer-
tify a transcript of the record and proceedings of a cause
* pending in his court, but removed by a change of venue to
another county. ia wee
2. The fact that, at the time of the killing, an indictment
-_ Was pending against the accused for stealing corn, the prop-
erty of the deceased, and that she was the prosecutrix and
_ the principal witness, it was proper to receive In evidence.
“It atfected the inquiry, arising naturally, whether the accused

%

at

“B54 SUPREME COURT -

(Dec. Term,

; (Childs et al. v. The State. ]
evidence, or which might be legitimately put in evidence,

that such suspicion vel non should be considered by the jury.

And that body cannot be too cautious in giving ‘wei
hes Sortie eee It is at best morea uation oboe
ry, af Soden oe ee by which truth is attained
aw. is part and parcel of that exacting
system of reasoning, by which, in ortintiiet ‘Gdele the ek
“ia Ears the existence of some fact, not positively proven
to exist, by the proof of other facts, which demonstrate its
existence. To authorize a conviction in.a criminal trial. th
facts and circumstances proved to exist, and believed by tise
: yu ’, must be so connected and complete, as to lead the miind
- Pig jary, with moral certainty, to the conclusion that the
¢ efendant is the guilty offender; and, with equal moral cer-
Sant must exclude the idea that another did the deed. One
re the other ; for if the facts and circumstances duly
on opesty weighed, leave a reasonable doubt of the excli-
: sae a ar in the second branch of the sentence above
scone aes certainty of conclusion, mentioned in the first
ranch of the sentence, has not been reached, and the de
ao should be acquitted. ee i, -
rom what we have said above, there are i i

the charge, excepted to in this case, may be pixen witha
is bea us ~~ the toatnLOn ys tending to show that

: 'S were the murderers, “ was, for ;
x elem What those circumstances aan ie
Fas 348 not shown. The bill of exceptions set out but
sa e of the evidence. Under an inflexible rule of this court
taba affirmative charge asserts a legal proposition which
Hee - e correct under a conceivable state of proof, and the
i rh ere ee fails to. set out all the evidence, or enough
a hoon the inappropriateness of the charge, this court,
ri Of the correctness of the ruling below, will presume
ra hipe Sridemon to justify the charge given.—Morris v
aoe cient Ala. 57 ; Lempe v. The State, 49 Ala. 350;
User, a neon s v. Godwin, 30 Ala. 242; Fleming v.
© judgment of the Cireuit Court is affirmed; and Fri
day, the 22d day of March next, is set for the execution of
ne sentence of the law, as pronounced by the Circuit Court.

¥

OF ALABAMA. tate 855
(Washington et al. v. The State. ]

s Washington et al. vw. The State.

Indictment for Larceny. pee

‘1. Challenge of juror for cause ; what not ground.—That a juror is first cousin
to the prosecuting attorney is no ground of challenge for cause. _ ;

9 “Description of animal stolen.—It is no objection where the animal stolen
” that it should be alleged in the indictment as a ‘‘hog.”

idence, and discharge co-defendant.—Where there was
at a co-defendant was a participant in the
ficiency being a question for the jury—
g one of the questions—the court properly
dence unworthy of belief, and order such
e was not sufficient evidence to

—The Supreme Court declines to
d uncertain a manner that they

statements or declarations on a material point
ficient to raise a reasona

e.—A charge, speaking of the corroborating.
itness not worthy of credit, which says ‘‘such ©
il anything must be of a fact tending

to show the guilt of defendant,” is proper and its refusal is error.

.

“Aprran from the Perry Court of Quarter Sessions.
Tried before the Hon. PowHatran LockETt.
©The indictment in this case charged that “Andrew Wash-
ington and George Neal feloniously took and carried away a
hog, the personal property of one Robert Harper,” &c.
While the jury were being empanneled it ‘was agreed be-
«tween the defendants’ counsel and solicitor, that one Wm.
-Pitts, a cousin of the solicitor, who had been drawn as a
~ juror, should be excused from the jury because of such rela-
tionship, but the court refused, and defendant excepted. The
“case then proceeded to trial and the prosecutor testified that
he lost from his plantation a Berkshire “pig,” to which de-
fendant objected, because the indictment alleged a “hog,”
but the court overruled the objection, and defendant excepted.
The prosecutor then testified as to the stealing, &c.
-Defendant’s counsel moved, after the State had closed its
evidence, to discharge George Neal, a co-defendant, on the
ground that there was not sufficient testimony to convict him,
‘or put him on his defense, under section 4896 of the Code.


—_— aoe oy a

os,

Mrs. Eugene Clef Ake

se pe

YL
Scare Ql g utruder

<

identified as William
le Mina, is in the
Athens today under
loniously entering
Clem and of

rounIslances Sur
re harrow ing’
returned from
home of

T ieiaal

inother

) Sprang from
seized her, ac-
hat incoher-
ificers. He
handful of
She!

thin

intruder te

aren

irs, Clem fled by way of
window and alarmed a neighbor.
ictis Were hastily  stisiuone A
1 prompt response was male by
the sheriii’s force. The Clem
home is seven miles from Athens,
on the Nick Davis road and by the
time officers arrived the negro had
departed. Mrs. Clem was in such
@ nervous condition from the
fright and rough treatment — she
had received that it was necessary
to call a physician. Other than the
effects of the tobacco in her eves.
bruises from the choking and the
nervous effects of the fright, Mrs
Clem was not harmed.


Pa we nee ee: oe

pene OW

“Seana
RA Bote p Hf: ae
/0]z26/19 5h
(1-2)


CLARK, William, black, elec. Ala. (Limestone) Jan. 17, 1941.

Most of the copies of the ALABAMA COURIER, Athens, Alabama,
containing articles on Clark's crime and two trials were too
tightly bound bound to allow copying, so the articles have been
condensed as follows:

ALABAMA COURIER, Athens, 10-27-1938 (1:1): Clark, charged with
criminal assault was arraigned before Judge A. A. Griffith and
trial was set for November 3rd. Clark held for safe-keeping in
Birmingham. Sheriff J. E. Wellden returned him for the hearing.
He had requested assistance from the Highway Patrol and two cars
with six patrolmen provided for escort. There was no trouble.
Clark had been taken to the Jefferson County Jail on the day of his
capture and a large crowd, mostly from Mrs. Clem's neighborhood,
gathered in Athens on the night of the crime. Four men were
allowed to go inside and search the jail and when they had
satisfied themselvwa that he had been removed the crowd quietly
dispersed. Attorneys Buck Steele, Thos. Woodruff, Edward Goodrich
and W. W. Malone were appointed to defend Clark. James G. Rankin
was also appointed, but he was excused when he explained to the
judge that he had last represented a capital case 17 years pre-
viously when he defended Tom Wilson in a celebrated case and that
the nervous tension had implaired his health.

OK KK RK
ALABAMA COURIER, Athens, 11-3-1938 1:1): A mistrial in Clark's case
was declared when, after 7 hours of deliberations, the jury stood
11 to lin favor of the death sentence. This was at 6 PM, the jury
hqaving retired at 11 AM. The judge announced a new venire and a
third week of court to try Clark again. Clark was returned to

Birmingham by "...what seemed to be the entire State Highway Patrol
of Northern Alabama..." An unusual feature of the trial was when
a deliberating juror asked the meaning of the phrase "capital
punishment." After an explanation was given, the mistrial was de-
clared. "...William Clark, acccused of committing a rape on a
young woman belonging to a prominent and widely connected
family. 6"

"The Solicitor was Melvin Hutson and he was assisted by County
Attorney George C. Johnson and R. B. Patton. The jurors were
Odie Jones, Chas. M. Corder, Ike D. Dawes, Ross B. Holland, Will
W. Sloan, John T. Shannon, Fred Black, Henry B. White, Claude
Jones, Arliss S. Gray, Carl Robison and Walter E. Evans."
KKK KK RK
ALABAMA COURIER, Athens, 11-10-1938 (1:1): "WM. CLARK TO DIE IN
ELECTRIC CHAIR: NEGRO GOES TO CHAIR FOR OUTRAGE OF FARMER'S
WIFe...* The jury returned the verdict after fifteen minutes
deliberation, and he was sentenced to die on December 16th. The
jury consisted of Frank Turner, William G. Hudson, Arthur W.
Stewart, Benjamin F. Narmore, Roy D. Black, John Stewart, Henry
Christopher, Douglas Newby, J. Houston Smith, Theo Calvin, Mack O.
Gray and George Browning. Clark was escorted back to Birmingham by
50 Highway Patrolmen who had stood on guard duty while was was
being tried for assaulting Mrs. Eugene Clem, 3l-year-old matron on
Oct. 20th.


}

7

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as

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ec had
ic de-
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testi-
Clem
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ission
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, and

lived
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1938,
lives,
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and 9
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{ have
‘id not

CLARK v. STATE Ala. 263
Pg eRe ont tte; 195 So. 260 : ;

:. “On cross examination by the State, the front bedroom and I got that watch and
“witness testified as follows: the clothes were in a closet right there in
«> “IT was in the house when I seen her com- the bedroom and I left and come to Bob
-ing)and I had gone in there to steal money _Leopard’s house where Joe Rainey lives
~and'she came in the back door, and I was about three or four miles away, and I was

arrested about ten-thirty, or eleven o’clock

sin her living room near the front door and :
she was coming in the back door and in- and we got to town before twelve o'clock.
, stead of going out the door I went to the “Recross examination:

, bathroom and hid behind the door in the “Here the State asked the following
bathroom, and when she came in and saw question: Now, didn’t you testify. in this
me she ran and screamed and I followed case before when you were tried a few
oher and caught her before she got to the weeks ago? Witness answered: Yes, sif.
bedroom and choked her from the back. Question: And didn’t you testify then on
»» “Q. What hand did you use? A. Used that trial, when questioned by your lawyer,
this one. , this: ‘Well, now, in the struggle, while you
owt, What dia “you: do with the oth er Were choking her, did you fall down when
hand?’ A. I just had her around the waist or And didn’t you answet, Yes,
“with this other one. Wh i oe Tana he Ch og No, oe
4 : n rst got to the Clem house tha
., (Q. Hold that hand up so the jury can morning I went into the living room, I
see, the one that you choked her with. You didn’t hear anything and stayed in there
choked her until she fell? A. Yes, sir. apout five minutes and I just went over
_And she become unconscious and when she there to that house looking for money cil
jfell I turned her loose, and I did not put when I got to the house I went in through
. powder in her eyes, it was bacca crumbs, I the front door without knocking, and got
} ang pas ene ri re aa. wi Sd these things that I have mentioned.”
bacco crumbs, an is was afte a ,
paces er, and I did not take her under‘, 4 the conclusion of the evidence, the
“dothes off of her, and did not leave them court gave the jury a very full and compre-
‘on the floor, but I did choke her and when hensive charge, going over every phase of
“she fell I throwed bacco crubs in her eyes the law applicable to the case, and also
“and I locked the door and come on back fully instructing the jury as to the burden
and got her watch and rifled the house. j- and measure of proof required before a
conviction of the defendant could be had as

‘got her clothes and when the officers ar- ‘ vit
to any charge embraced in the indictment.

“rested me the clothes were at this other fel- ;
low’s house. I had the razor at the time I Notwithstanding the fact that the court’s

Was choking her, but the razor was my fa- oral charge was full, and extremely fair to
rther’s, I had the razor when she fell on the defendant, his counsel requested, in
“the floor, but I did not get down there with writing, thirty-eight special charges. Of
her. I didn’t choke her until I thought she this number the court gave thirty-five, re-
‘was dead, but I did put tobacco crumbs in fusing only three.
} nd when she got out she jum : .
cb of the window nd got aay, aT [3] 2 ne evidence in the case was not
"peéped in there but did not see those under- only st nee w cory a alice baad jury
clothes on the floor and when she fell at ©” the charge of rape, at was § Cient to
the time I choked her, I did not fall. support the verdict of the jury finding the
Herpes)! , defendant guilty of rape. The punishment,
wily Recross: of course, was a matter entirely within the
... "You testified in the trial of this case a discretion of the jury. The court, there-
_ few weeks ago and in that trial did you not fore, committed no error in refusing the
testify while in the struggle while you were general charge requested in writing by the

“ *

o,
wy Arete
4

4 q choking her did you not fall down when defendant.

[a she fell, and you answered “Yes, sir’. Charges 9 and 19 requested in writing by
. ‘Didn't they also ask you this question : Q. the defendant were fully covered by the
y i. Now, after you all fell down in the floor, court in its oral charge, and besides the

you said you fell down with her, didn’t you. charges were bad in the use of the word
‘The witness answered, ‘No, sir. “supposition”. Smith v. State, 197 Ala.

_.\ “Redirect examination of Deft.: 193, .72 So. 316.

©: “When I looked in the room and saw that Following the defendant’s conviction and
Mrs. Clem had gone I came back in the sentence thereon, the defendant filed a mo-

nee AAT:


Deputy Bill Johnson arrived on

" 1
the seene

nig in] his
rceoat, a leather |

ich, € MY
homnp and al
fied |
ited
Mr. |
|

i 4 lai izing it.


264 Ala.

tion for new trial. This motion was filed
for the defendant by counsel employed aft-
er his first trial on November the 3, 1938,
but who did not appear in the cause, as
counsel for the defendant until after his
second trial, which resulted in the convic-

- tion: ‘On the first trial on November 3, .

1938, the jury failed to agree and a mis-
trial was entered.

In this motion for. new trial, many
grounds are. stated why the verdict of the
. jury shouldbe set aside and a new trial
‘granted the defendant.

What ‘has been heretofore stated with
reference to the evidence will serve to
show that, in our opinion, there was abso-
lutely no merit in the first ground stated in

_ the motion for the new trial.

It is also urged for the first time in the
_ motion for new trial, that the public mind
in Limestone County was so inflamed

against the defendant that it was utterly.

- impossible for him to have received a fair
-and impartial trial, No motion was made
_in the cause for a change of venue, nor
does the evidence in the record show that
there existed at the time of the trial on
November 10, 1938, such hostility and prej-
udice against the defendant as would make

‘it impossible, or even probable, that he.

could not secure a fair and impartial trial
before a jury impaneled of qualified citi-

‘zens. of Limestone Caunty. Counsel for |
the defendant, whom the evidence shows |

‘were ‘highly esteemed members of the

‘Limestone County Bar, must not have been |

- impressed that the situation and conditions
then prevailing and surrounding the de-
fendant were such as to render improbable
or impossible a fair. and impartial trial for
the defendant, or, we feel sure, a motion
for a change of venue would have been
‘made. Counsel owed the defendant no duty
to file such a motion in the absence of some
circumstance, or circumstances, which
would indicate to reasonably active and
- alert counsel that their client could not se-
cure a fair and impartial trial at the hands
of a Limestone County jury. It cannot be
assumed that because one is charged with

rape, and that there may have been expres-
sions of hostility or resentment from some
sixty to one hundred and fifty persons at
~the time when the alleged rape was com-
mitted, that the accused cannot get a fair
-and impartial trial in the county where the
alleged offense was committed. Often such
exhibitions are under temporary excite-
ment, which soon pass by.

195 oleae REPORTER

‘It is also insisted for the first time on
motion for: new trial that the indictment
should be quashed for the reason that quali-
fied persons of the negro race had. been
arbitrarily and systematically. excluded
from the jury box and jury rolls of Lime-
stone County for fifty years solely because
of their color and race.

[4,5] It is insisted that the mother of
the defendant, after the first trial, secured
counsel to prepare a plea in abatement to
quash the indictment on the above stated
grounds, but that counsel for defendant,
through fear for their personal safety, or
for other. reasons personal: to themselves,
did not file the plea. No doubt counsel
would have filed the plea, if there had, been

evidence sufficient to justify, such action.

We are not authorized to ascribe to the ac-
tion of counsel motives of such character.
Counsel must be allowed some discretion in
the conduct of their client’s case. Proce-
‘dural law of this state required that pleas
in abatement must be filed before pleading
to the merits, or in bar, and if not’so filed,
it is discretionary with the court whether
he will allow the withdrawal of the plea of
not guilty to permit the filing of a plea in

abatement. Hubbard v. State, 72 Ala, 164;

‘Jackson v. State, 74 Ala. 26,

No plea in abatement was filed in the
cause, and the matters which should have
been presented by a timely plea, if there
had been evidence to support it, were at-
tempted to be raised for the first” time on
motion for new trial.

[6] But without regard to the vavitiass
in presenting the question of the exclusion
of qualified persons of the negro race from
the jury box and jury rolls by proper plea
in abatement, or motion to quash, we may
say that the evidence offered in support of
this contention by the defendant fails to
show that the officers charged by law with
the duty of filling the jury box, and pre-
paring the jury rolls of Limestone County,
systematically or arbitrarily excluded from
the jury box or jury rolls persons of the
negro race solely because of their color or
race. The evidence shows that there were,
and had been names of persons of the ne-
gro race, qualified for jury service, in the

"jury box, and some had been drawn for

jury ‘service at different times, but had
been excused from serving, presumably at

‘their ‘request.

We are of the opinion, and so hold, that
the defendant-appellant wholly failed’ to

show that qualified citizens of the negro

aa ea

Sg Sa cab te aie

Lipa Sag ie t gh BisABn

ttt

afi east ee =

OME

race had been arl
the jury box, and |
County on account
Nor are we impres:
the defendant was
sented by appointe:

The argument su
defendant was not
resentation for the
was made to the ju
and only argument
in our judgment, \
counsel for defend
it was the part of
the opening argun:
thereby they woul(
ing a final and con
er the solicitor ha:
argument, it appei
attorneys requestc
cial charges in wi
given by the court,
counsel were of th
dure was better t!
opportunity to ma!
ing argument in tl
often resorted to |
torneys.:: There is
tion of the defend

This court is i
that the systemati:
account of their
jury ‘box and ju
timely motion an
quashing of an i
grand jury draw:
careful reading ©
on the motion fo
ceded that the qu
the first time on s
fails to show tha
Limestone. Count)
practice; on th:
shows that there
sion of negroes f
rolls.

[7] It must b
fication of juror:
left to the soun
commission, but,
mission, while «
cannot exclude |
because of their
required qualific
234 Ala. 197, 17-1

The issues pre:
facts of the cas:
case of Hugh Pi
306 U.S. 354, 59

195 SO.—


ne

HOLLAND v. FLINN ~ ‘

race had. been a
the jury box, and
County on accoun
Nor are we impresse

sented by appointed counsel.
“The argument sub

resentation for the t
was made to the jury, in answer

and only argument made by the solicitor, iS,

in our judgment, without force.

counsel for defendant were of the opinion
it was the part of wisdom not to reply to
ument of the solicitor, for

the opening arg :
thereby they would prevent him

ing a final and concluding argument. Aft-

rbitrarily excluded from
jury rolls of Limestone
t of their race or color.
d by the evidence that

the defendant was not adequately repre-

mitted to show that the

defendant was not afforded adequate rep-
he reason that no argument

Kia. 965

195 So. 265 i.

to the first,

“The record in this case -has been care-
fully read and considered, and we fail to

find any errors,
rights of the defendant were denied him,

and it results that the judgment of the cir-
cuit court must be affirmed. ee
And it appearing to the court that the

day heretofore fixed
of Limestone County, Alabama, for the

execution of the appellant has: passed pend-
ing this a

or that any constitutional

by the Circuit Court

ppeal, it is ordered by the Court:

No doubt that Friday, the 31st day of May, 1940, be

from mak-

er the solicitor had concluded his opening

aryument, it appears from the
attorneys requested more than
cial charges in wri
given by the court, except three

record, the
thirty spe-

ting, all of which were
. No doubt

cotmsel were of the opinion that this proce-
dure was better than to give the solicitor

opportunity to ma
ing argument in the case.

ke the final arid conclud-
This practice is

often resorted to by the best and wisest at-

torneys.i There is no merit in
tion of the defendant.’

this conten-

This court is fully mindful of the fact
that the systematic exclusion of negroes on
account of their race and color from the

juty box and jury rolls, on
timely motion and. showing,

quashing of. an in
grand jury drawn from such

careful reading of

proper and
requires the

dictment returned by a

a box, yet a

the.evidence submitted

on the motion for new ‘trial (if it be con-
ceded that the question could be raised for
the first time on such motion for new trial)
fails to show that the: jury commission of
Limestone County was guilty of such illegal

practice; on the contrary,

the evidence

shows that there had been no such exclu-
sion of negroes from the jury box or jury

rolls. -

[7]. It must be conceded that the quali-
fieation of jurors is to some large extent
left to the sound discretion of the jury

commission, but, of

course, the jury com-

rission, while exercising this discretion,
cannot exclude persons of the negro race
because of their race, if they possess the
required qualifications. Collins v. State,

934 Ala. 197, 174 So. 296.
The issues presented on th

e trial and the

facts of the case differentiate it from the
case of Hugh Pierre v. State of Louisiana,
306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 75/.

195 SO.—171%4

!

and it is hereby
cution of the appe
quired by law.

fixed and set for the exe-
Hant in all respects, as Te-

Affirmed, and Friday, 3ist day of May,

1940, set for the execution of appellant.

All the Justices concur,

oO « KE NUMBER SYSTEM ? ©

anme

HOLLAND Vv. FLINN.
4 Div. 127.

Supreme Court of ‘Alabama.
April 4, 1940.

’

1. Action €=6 se a
An. action under the Declaratory Judg-

ment Act to determine whether .a warranty.
deed conveyed a fee-simple title, wherein ‘it
was necessary to construe a will to deter-
mine whether’ it passed a life estate with
remainder to devisee named, or passed a life’
estate with an unlimited power of disposi-
tion, would not lie where the remaindermen
named in will were not made parties. Code
1923, § 6928; Code Supp.1936, § 7881(11).

2. Action 66 ;
In action for. declaratory judgment,

presence of necessary parties is jurisdiction-
al, Code Supp.1936, § 7881(11).

3. Action G6
In action under Declaratory Judgment

Act, court will not entertain and, render de-,
erees where questions presented cannot be
adjudicated for want of necessary parties, ,
no matter what may be the wishes of the
parties which are before the court. Code

Supp.1936, § 7881(11).

poses .

AI Bi, 3 ' a

CBE LAE eked l= tic RDNA RNC ih 7 Sok

peberondiancnnt Nae mene estes ao
pe =

a RE AA I


-

B Thursday March 23, 1995

Montgomery Advertiser

eesrenerre tian

By Jessica Sandler’

ASSOCIATED PRESS WRITER

= ; %

+ The Alabama Supreme Court on
Wednesday rescheduled the execution of
convicted murderer Willie Clisby Jr. for
next month, and set a May 12 execution
date for another death-row inmate, Var-
Hall: Weeks.

= If Clisby’s execution goes forward on
April 28, it would be the first in Alabama
in two years. The last inmate put to death
in the electric chair at Holman Prison in
Atmore was Cornelius Singleton, who
died Nov. 20, 1992 for murdering a nun

in Mobile, .

Clisby was originally set to die on Jan.
6, but the Supreme Court postponed the
execution while he pursued another ap-
peal. Clisby was convicted in February
1981 of killing and robbing a crippled
man, Fletcher Handley, 58, of Birming-
ham on Nov. 7, 1979. Handley died of
two blows to the head from an ax.

At the time of his trial for Handley’s
killing, Clisby was serving a 27-year pris-
on sentence for murder in the June 1980
stabbing death of his landlady, Rebecca
Brown Jackson, 54; of Birmingham.

Weeks was convicted and sentenced to
death for the 1981 shooting death of Mark

= a

Batts, a veterinary student at Tuskegee
University in Macon County. He was ar-
rested in Ohio driving Batts’ car.

‘““We do expect both executions to be
carried out,’’ said Sandra Stewart, a dep-
uty state attorney general.

One of Clisby’s attorneys, Tony Miller
of Birmingham, said his client on Mon-
day filed a petition with the U.S. Supreme
Court asking the justices to reconsider a
request to review his case. One of the
grounds for review cited in the appeal is
whether Clisby’ s mental problems and
educational deficiencies were considered
at his sentencing, Mr. Miller said.

7 e

The petition for rehearing also cites the
U.S. Supreme Court’s plans to review a
separate case involving a suspect’s rights
when arrested and questioned and judicial
handling of appeals focusing on such
rights.

‘“‘What we are asking is that we wait
until the Supreme Court decides that ...
and if they decide it in one fashion, we
think-Mr. Clisby should have his case re-
viewed before he is put to death,’’ Mr.
Miller said.

If the U.S. Supreme Court denies the
request to reconsider reviewing Clisby’s
case on those grounds, Mr. Miller said,
the lawyers will proceed with further state

Jabama Supreme Court sets dates for executions

court appeals. He declined to elaborate on
future appeals plans.

Weeks’ attorney, Jim McMillan of
New York, said Wednesday afternoon he
expected to petition the U.S. Supreme
Court to reconsider Weeks’ request for a
review of constitutional issues in his case.
Among those is an appeal based on inef-
fectiveness of trial counsel.

Mr. McMillan, who has handled
Weeks’ case since 1990, said the previous
attorney was unaware that Weeks is men-
tally ill and had been diagnosed a para-
noid schizophrenic. and failed to present
records of that diagnosis at sentencing.
He declined to name the attorney.


Alabama Executes Ax-Murderer
AP 28 Apr 95 11:56 EDT V0430

Copyright 1995 The As

wi

ociated Press. All rights reserved.

The information contained in this news report may not be published,
broadcast or otherwise distributed without the prior written authority
of the Associated Press.

ATMORE, Ala. (AP) -- A man who broke into the home of a disabled
acquaintance and killed him with an ax during a a robbery was executed in
the electric chair early Friday.

As Willie Clisby’s 12:01 execution time approached, inmates in the
celis above the execution chamber at Holman Prison started banging on
the walls and floor. Clisby, 47, sat impassively in the bright-yellow
wooden chair.

After indicating he had no last words, his face was covered with a
black cloth. As the first jolt of the two-minute electrica surge hit
his body, his fists clenched and his body went rigid.

After about 20 seconds, his body relaxed and a small spiral of smoke
curled from the electrode attached to his bare left leg.

Clisby was convicted of killing 58-year-old Fletcher Handley with
two chops to the head during a 1979 break-in at his Birmingham home. He
stole six old silver-certificate bills, ecliee tors’ items with a face
vaiue of 580.

Handley had to use crutches because of a foot injury suffered ina

car accident. He had worked with Clisby at a cemetery.

"T Just want justice," Handley’s son, Fletcher Jr., told The
Rirmingham News. My father was hacked to death while he slept in his
bed. He was executed for no reason at all.

Clisby also was convicted of stabbing his landlady to death earlier
9739, and was sentenced to a 27-year prison term.

eir final appeals, Clisby’s attorneys argued that the electric

e . In rejecting a request for a cig be Judge.A.L.

he lith U.S. Circuit Court of Appeals said there i

’

me ~T. o
ement and burning of a corpse is cite! and

"My

it might bother other people, but I don’t know
to the person who’s being executed," the

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SECTION

FRIDAY
April 28, 1995

| ASSOCIATED PRESS WRITER .

_ _ATMORE — An inmate convicted in a
| 1979 ax murder lost a series of final appeals
_ Thursday as defense lawyers failed to con-
vince judges that disfigurement in Alabam-
a’s electric chair is illegally cruel.

Willie Clisby, 47, was scheduled to be
put to death at 12:01 a.m. today at Holman
Prison.

Clisby was. convicted of killing a
crippled man, Fletcher Handley, 58, with
two chops to the head during a break-in at
Handley’s Birmingham home. Handley, a
one-time co-worker of Clisby’s, had to rely
on crutches because of a foot injury suf-

ee UL.

wre — >

Evidence showed Clisby awoke the
sleeping Handley, killed him with an ax and
stole six old silver-certificate bills, collec-
tors’ items with a face value of $80. Clisby
also was sentenced to a 27-year prison term
on a second-degree murder conviction for
the stabbing death of his landlady earlier in
1979,

Gov. Fob James refused to commute
Clisby’s sentence Thursday and declined to
hold a clemency hearing.

The Alabama Supreme Court, in a 6-0
ruling Thursday afternoon, rejected a de-
fense request for a stay of the execution.
The 11th U.S. Circuit Court of Appeals in
Atlanta followed with a similar rejection
later. ,

Judge A.L. Edmondson of the 11th Cir-
cuit said there is no evidence that the disfig-
urement and burning of a corpse is cruel
and unusual punishment.

“It may be unsightly, it might bother
other people, but I don’t know that it’s
cruel and unusual to the person who’s being
executed,”’ the judge said.

Clisby’s appeal sought a hearing to de-
termine if Alabama could continue to use
its electric chair, parts of which are some 70
years old. It argued that the chair malfunc-
tions, causes excessive pain and has disfig-
ured prisoners executed in it since it re-
turned to use in 1983,

State’s attorneys contended that the
cruelty claim had been rejected earlier and
that the latest plea was not timely.

A state appeals court and a federal judge
in Birmingham both refused earlier in the
week to halt the execution.

Clisby failed to overturn his conviction
in two previous rounds of appeals, in which
lawyers claimed he was mentally incompe-
tent.

Clisby grinned as he confessed to the
Nov. 7, 1979, murder of Handley, accord-
ing to District Attorney David Barber, then
a deputy prosecutor.

Handley’s son said it was frustrating his
father’s murderer had been on death row
since 1981.

“‘T hate to sound like a cruel monster, but

Please turn to INMATE, 2B

Wiregrass/Alabama

ERGEE 4

Friday, April 28, 1995

Ax manierterer heads to electric chair

By JESSICA SAUNDERS,
Associated Press Writer”

_ATMORE — ‘An inmate convict- ,

ed in a 1979 ax murder lost a series
of - final appeals Thursday as
defense lawyers failed to convince
judges that disfigurement in Alaba-
ma’s electric chair is illegally cruel.

- Willie Clisby, 47, was scheduled
to be put to death at 12:01 a.m. Fri-
day at Holman Prison.

Clisby was convicted of killing a
crippled man, Fletcher Handley, 58,
with two chops to the head during a
break-in at Handley’s Birmingham
home. Handley, a one-time co-
worker of Clisby’s, had to rely on
crutches because of a foot injury
suffered in a car accident.

Evidence showed Clisby awoke

-the sleeping Handley, killed him

with an ax and stole six old silver-
certificate bills, collectors’ items
with a face value of $80. Clisby also
was sentenced to a 27-year prison
term on a second-degree murder.
conviction for the stabbing death of
his landlady earlier in 1979.

Late Thursday, in a 7-2 ruling, the
U.S. Supreme Court denied Clisby a
stay of execution, exhausting his
avenues for appeal. Justices John
Paul Stevens and Ruth Bader Gins-
burg would have granted his peti-
tion, spokeswoman Toni House said.

Gov. Fob James refused to com-
mute Clisby’s sentence Thursday
and declined to hold a clemency
hearing.

The Alabama Supreme Court, in
a 6-0 ruling Thursday afternoon,

rejected a defense request for a stay
of the execution. The 11th U.S. Cir-
cuit Court of Appeals in Atlanta fol-
lowed with a similar rejection later.

Judge A.L, Edmondson of the
11th Circuit said there is no evi-
dence that the disfigurement and
burning of a corpse is cruel and
unusual punishment.

“It may be unsightly, it might
bother other people, but I don’t

know that it’s cruel and unusual to

the person who’s being executed,”
the judge said. .

Clisby’s appeal sought a hearing
to determine if Alabama could con-
tinue to use its electric chair, parts

ae

of which are some 70 years old. It
argued that the chair malfunctions,
causes excessive pain and has dis-
figured prisoners executed in it
since it returned to use in 1983.

State’s attorneys contended that
the cruelty claim had been rejected
earlier and that the latest plea was
nottimely. .

A state appeals court and a fed-
eral judge in Birmingham both
refused earlier in the week to halt
the execution.

Clisby failed to overturn his con-
viction in two previous rounds of
appeals, in which lawyers claimed
he was mentally incompetent.

= ~Alabama_ : = THE DOTHAN EAGLE 5-A
“His muscles Slackened’s about 20 sec- | = aif aéetdent in 1978 and relied on tocommute Clisby’ s sentence.

ds later. A thin plume of smoke rose _ crute hes t to walk. Clisby worked with him The Alabama Supreme Court rejected
stron the electrodes ‘around his leg. aS = ‘irmingham cemetery. — a defense request for a stay of the execu-

“Clisby also was sentenced to a 27-year tion 6-0 Thursday afternoon.

‘Pronounced | Clisby . dead .at prison term on a second-degree murder The 11th U.S. Circuit:Court of Appeals
: ea conviction for the stabbing death of his in Atlanta followed with a similar rejec-

~ Clisby,: 47, was the ‘beat itimate execut- landlady earlier in 1979. tion later.

ed in Alabama. since 1992.- + In his final round of appeals, Clisby State’s attorneys contended that

- Hewas put to death for killing 58:year- ‘argued that death in the electric chair the cruelty claim had been rejected

ld Fletcher. Handley ° with two chops to’ Was unconstitutionally cruel. — . earlier and that the latest plea was not

TMORE Willie Clisby War eaiet in - throughout the procedure. Bee Se Two medical doctors, who’ were not
‘the ‘final "minutes before his ‘execution Electrodes were attached to | sby's _identified, ° {
“early Friday morning at Holman Prison head and left leg, and he was strapped - 12:07 a.m...
“for killing a handicapped co-worker. with into the bright yellow wooden chair with |
; two ax blows to the head 16 years ago..--. -. wide leather straps. =
- Clisby listened impassively as the exe-. __ In _ the segregation unit. cells. above
‘cution order was read by Acting Warden and beside the chamber and. witness

‘Willie E. Johnson, acknowleged him room, inmates. were banging >on the v the head from an ax on Nov. 7, 1979, then ~The U.S. Supreme Court denied Clisby timely.

“briefly, then was silent. floors and wall. : - ay ~ stealing six silver-certificate bills. from a a stay of execution in a 6-3 ruling late Holman Prison spokesman Charlie

. He had no final words, prison officials The first high-voltage current. cof the’ Handley’s home in Birmingham. Thursday, with Justices John Paul Bodiford said Clisby’s body will be

Said: two-minute electrical cycle hit Clisby’s The bills were collectors’ items witha Stevens, Ruth Bader Ginsburg and _ released to a Bessemer funeral home at
“There is no reprieve. Proceed,” body about 20, seconds after 12:01 a.m.,_ face value of $80. Stephen G. Breyer dissenting. his family’s request, following an autopsy

_ Prison: ‘Commissioner Ron Jones told ond he went tree. his fists } clenehd »... Handley So suffered: a foot i injury ina Earlier, Gov. Fob James had ceived in Mobile.

pe is ey 8:


HG,

Alabama Prison Project -———
410 South Perry St. Non-Profit Oreanizan |
Montgomery, Alabama 361u4 US Postage

f M PAID

, ontgomery, Alabama

Permit No. 389

8


<

ae

CLISBY, Willie, “Col ALSR, (Jeffe dom April 28,
Ye

onvicte

urderer

Clisby dies in chair

> Execution first in
Alabama since 1992 and
sixteen years after
murder occurred

Associated Press

ATMORE, Ala.

Willie Clisby died in the elec-
tric chair at Holman Prison
early Friday morning, nearly 16
years after he was condemned
for killing a crippled co-worker
during a burglary.

Clisby, 47, was the first death-

‘row inmate executed in Ala-

bama since 1992.

Impassive as he sat in the
bright-yellow wooden chair, Clis-
by, dressed in prison whites,
listened to the acting prison
warden read the execution order
about 11:50-p.m. Only his eyés
moved, flicking from side to side
occasionally and blinking fre-
quently.

When the warden finished
reading the order, Clisby briefly
acknowledged him, then = was
silent. He had no last words.

Inmates in the segregation
cells above the execution cham-
ber started banging sporadically
on the walls and floor as 12:01
a.m. drew closer. The shades
were drawn in the witness room,
then were raised just before
midnight.

Clisby’s face was covered with
a black cloth. The first jolt of the:
two-minute electrical surge: hit
his body about 20'seconds after

12:01, and his: body went rigid.

and _ his . fists: clenched. : The:

muscles slackened about 20 sec-’
onds later, and a thin plume of

smoke rose from the electrode
attached to his bare left leg.
The witness room blinds were
drawn again, and two doctors
entered the chamber about
12:06. They pronounced him

dead a minute later, and the

witnesses were told at 12:11 a.m.
that the execution had been
carried out.

Neither Clisby’s family nor his
attorneys witnessed the execu-
tion.

Clisby was put to death for
killing 58-year-old Fletcher Han-
dley with two chops to the head
from an ax on Nov. 7, 1979, then
stealing six  silver-certificate
bills from Handley’s home. The
bills were collectors’ items with
a face value of $80.

Handley had suffered a foot
injury in a automobile accident
in 1978 and relied on crutches to
walk. His son, Fletcher Handley
Jr., said before the execution
that he was frustrated by the
length of time Clisby had been
on ‘death row.

“I just want justice,” the vic-
tim’s son said. “My father was
hacked to death while he slept in
his bed. He was executed for no
reason at all.” ;

A. deputy prosecutor at the
time of the 1981 trial, Jefferson
County District Attorney David
Barber, recalled that —Clisby
grinned as he confessed to the
Slaying on Nov. 14, 1979.

Handley. and Clisby had
worked together at Elmwood
Cemetery in Birmingham.
~Clisby also was sentenced to a
27-year prison term on a second-
degree murder conviction for
the stabbing death of his landla-

dy. earlier in 1979.

1®@ 4

Cott 00S, CA
LEDGER-ENQUIRER

Saturday, April 29, 1995


AES ROSIE nde wee 7 ae Oe

4

ALABAMA PRISON PROJECT

410 South Perry Street Montgomery, Alabama (334)-264-7416

ALERT+++4+4+44+4+44 ALERT+4+44+4+444+4+4+4+ALERT+4+4+4+4+444++ALERT

EXECUTION DATE
APRIL 28, 1995

WILLIE CLISBY

Willie Clisby_is scheduled to be executed by the state on April 28 at 12:01 a.m. He is an African American man
with borderline intelligence and a personality disorder. Clisby was convicted of killing and robbing an elderly
crippled man in 1979. The jury which heard his case was provided inadequate psychological information from
state psychologists and none from a defense psychologist. A federal judge determined that the sentence was
"fundamentally unfair" because he was not provided adequate psychiatric assistance. The judge granted him a
new sentencing hearing. This ruling was overturned by a higher court and this information has never been heard
and used as a basis for another sentencing consideration.

Clemency requests should go to:
Governor Fob James

Governor's Office
11 S. Union St.
Montgomery, AL. 36130

334-242-7120

Varnall Weeks May 12. There are current petitions in the courts addressing Varnall's mental status. It is possible
that, with the mental problems he has, he will be found not competent to be executed. We will provide more
information as it becomes available, or you can call 334-264-7416 for updates.

ALERT+4+4+44++ALERT+4+4+4+444+4+4+ALERT+44++4+4++4+4+ALERT

mg EXECUTION DELAYED: MONTGOMERY

-| The Alabama Supreme Court decided Wednesday to

postpone the Jan. 6 execution of convicted killer Willie
Clisby because he is pursing another appeal.

The state Supreme Court granted the delay because
Clisby has asked the U.S. Supreme Court to review his
case.

Clisby was convicted in February 1981 of the ax slay-
ing of Fletcher Handley, 58, of Birmingham. The crip-
pled man was killed with two blows to the head and
money was stolen from his home on Nov. 7, 1979.

One of the issues in Clisby’s appeal to the U.S.
Supreme Court is whether his mental problems and
educational deficiencies were considered when he was
sentenced to death, his attorney, Tony Miller of Birm-
ingham, said. Miller said the Alabama Supreme Court
can’t set a new execution date until the U.S. Supreme
Court decides what it is going to do with Clisby’s
appeal.

From Wire Reports

ALABAMA

MONTGOMERY — The Jan.
6 execution of convicted killer (
Willie Clisby was postponed by —

the state Supreme Court. Clisby

was convicted in 81 of. the ax

‘slaying of Fletcher Handley, 58. / ~ 92

At issue: whether or not Clisby’s
mental problems and education-
al deficiencies were considered

during sentencing.

(

1 (5B

February 22, 1995

8-A THE DOTHAN EAGLE

Dothan, Alabama

Wirec

McNair’s appeal refused
by U.S. Supreme Court

From Staff, Wire Reports

MONTGOMERY — The U.S:
Supreme Court refused Tuesday to
hear the appeal of an Abbeville man

convicted of capital murder in the’
1990 stabbing death of an elderly

Henry County woman.

The high court also refused the
appeal of another Alabama’ inmate
whose scheduled January execu-
tion was delayed to allow the
appeal.

The Supreme Court without
comment refused to hear the
appeals of Willie McNair, 30 of
Abbeville, and Willie Clisby, 47, of
Birmingham. .

Ms. Sandra Stewart, an assistant
attorney general, said the Supreme
Court action means McNair has
‘just finished the first of three
stages” of his appeals.

A Henry County jury convicted
McNair on the capital murder
charge after he gave authorities a
confession in the May 22, 1990, stab-

bing death of Ella Foy Riley, 68, of.

Route 2, Abbeville.

Under Alabama law, the only pos- K

sible penalties following conviction

out parole: Twentieth Judicial Cir-
cuit Judge Ed Jackson sentenced
MeNair to death in the slaying.

""MeNair and another Abbeville

man, Olin Grimsley, were charged
with capital murder because Mrs:
Riley’s purse was stolen from her

home following . the stabbing.
-MeNair led authorities to the site’
_ where the purse was discarded ona
dirt. road several miles from the
‘woman’s home: ;
|. MeNair’s conviction in the case

was earlier upheld by the Alabama
Court of Criminal Appeals, but the

/court ordered Jackson to hold a

new sentencing hearing in the case.

The ruling resulted in another
death sentence, but the appeals
court in September 1993 directed
Jackson to write a new sentencing
order for McNair and the appellate
panel then upheld the death sen-
tence in January 1994.

Grimsley and McNair were
charged in the case after relatives
of Mrs. Riley told lawmen McNair

had done yard work for her.

Grimsley’s trial on the capital
murder charge resulted in a mistrial
when a:‘Henry County jury couldn’t

» reach. a.,vendict: in. January 1992 fol-...
lowing some 13 hours of deliberation. :
_.. The case was then moved to
for capital murder are death in the —
electric chair or life in prison with-

Montgomery, where a jury found

Grimsley guilty of the lesser charge —

of first-degree robbery and Jackson
sentenced him to life in prison.

The criminal appeals court then.

overturned Grimsley’s conviction
and life sentence and he was tried

‘again in April 1994 on a robbery

charge. After the Montgomery jury
convicted Grimsley, Jackson again
sentenced him to life in prison.

Although MeNair was convicted
of capital murder and sentenced to
death, he has refused to testify
against Grimsley, who was linked to
the slaying through a Newport
cigarette butt found in Mrs. Riley’s
home.

A saliva sample from the
cigarette matched Grimsley’s sali-
va type, according to testimony in
his trials.

In the Birmingham case, Clisby
was convicted of capital murder in
February 1981 for the ax slaying of
Fletcher Handley, 58, of Birming-
ham. Testimony showed that Clisby
broke in the crippled man’s home,
woke him up and killed him before
taking $80. Clisby was on parole for
another murder at the time.

The Alabama Supreme Court

had set a Jan. 6 execution date for -
Clisby before he decided to take his

appeal tothe U.S. Supreme Court.

' Ms. Stewart, an assistant attor-
“ney general, said Tuesday the state

will request another execution date
be set soon. :

Alabama has not had an execu-
tion since Nov, 20, 1992.

= el


,

_

——

in Atmore since
was electrocut-

Clisby was convicte i
1981 and sentenced to die for the ax slaying of

‘| Handley, 58, of Brn am.
the early morning hours of Nov. 7, 1989,
woke him up, and then

into the crippled ma
ith two blows to the h

killed him wl

mone

At the time of his trial for the mur
by alre dy was in prison for the June 1980 death of his
landlady, becca Bro Jackson, 54, of Birmin

Clisby stabb d her to death after getting mad when @e

asked him to £0 out at 1 and buy her 4 barbecue

sandwich. He was sentenced to 97 years fo murder.

The state Supreme rt released @ order
Wednesday setting the execution date.

Montgomery Advertiser

m@ MONTGOMERY
Killer’s execution set for Jan.6  *

The state Supreme Court scheduled Alabama’s first execution in.
two years, with double killer Willie Clisby slated todieJan.6.

The execution would be the first at Holman Prison in Atmore
since Nov. 20, 1992, when Cornelius Singleton was electrocuted for

killing a nun in Mobile, prison system spokesman John Hale said
Wednesday. : ws

Clisby was convicted of capital murder in February 1981 and sen-
tenced to die for the ax slaying of Fletcher Handley, 58, of Birming*
ham. Testimony showed that in the early morning hours of Nov:'7;
1979, Clisby broke into the crippled man’s home, woke him up, and
then killed him with two blows to the head before taking money.

At the time of his trial, Clisby already was in prison for the June
1980 death of his landlady, Rebecca Brown Jackson, 54, of Bir-
mingham. Clisby stabbed her to death after getting mad when she
asked him to go out at 1 a.m. and buy her a barbecue sandwich. He
was sentenced to 27 years for murder. 2a

ADVERTISER.
Wi /, (ul Gow < / Al /,

JLOY, /7, SGGH

~

1056 26 FEDERAL REPORTER, 3d SERIES

as Callahan. Clisby was granted relief under
Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct.
1087, 84 L.Ed.2d 63 (1985), but we reversed
in Clisby 1.

On remand, the district court held an evi-
dentiary hearing on Clisby’s ineffectiveness
claims. The court concluded that Clisby
failed to satisfy Strickland v. Washington's
first element—unreasonable performance.
466 U.S. at 688-91, 104 S.Ct. at 2064-66.
But the district court, out of an abundance of
caution, went on to consider Strickland 's
prejudice element, concluding that Beidle-
man’s testimony, if presented, would have
changed the result. Relying chiefly on this
prejudice finding, Clisby appeals.’ We exer-
cise plenary review. Rogers v. Zant, 13 F.3d
384, 386 (11th Cir.1994).

Clisby argues that counsel was constitu-
tionally ineffective for failing to present ex-
pert testimony in addition to Dr. Callahan's
testimony at sentencing. Because Callahan
provided no beneficial testimony, Clisby ar-
gues, counsel should have looked for or in-
sisted on the appointment of another expert.
Although we limit our discussion to preju-
dice, we do accept the district court’s finding
and conclusion that defense counsel per-
formed reasonably in this case.

Petitioners alleging ineffective assistance
in death penalty cases bear the burden of
showing prejudice:

the question is whether there is a reason-

able probability that, absent the errors, the

sentencer—including an appellate court, to
the extent it independently reweighs the
evidence—would have concluded that the
balance of aggravating and mitigating cir-
cumstances did not warrant death.
Strickland, 466 U.S. at 695, 104 S.Ct. at 2069;
see also id. at 691-94, 104 S.Ct. at 2066-68.
“A reasonable probability is a probability
sufficient to undermine confidence in the out-
come.” Jd. at 694, 104 S.Ct. at 2068.

1. Clisby raises other arguments in this appeal.
He claims to have suffered from government-
imposed ineffective assistance of counsel. See
Strickland, 466 U.S. at 686, 104 S.Ct. at 2063.
Clisby faults counsel's performance in areas un-
related to expert evidence. Clisby also argucs
that he should have been permitted to arguc
several other instances of allegedly ineffective

When counsel performs reasonably, we

doubt that prejudice can exist within the 4

meaning of Strickland. See id. at 694, 104
S.Ct. at 2068 (prejudice shown by “a reason-
able probability that, but for counsel's unpro-
fessional errors, the result of the proceeding
would have been different”) (emphasis add-
ed). But, even if we were to assume for the
sake of argument that counsel performed
unreasonably in this case, we could not con-
clude that Clisby was prejudiced.

The weakness of Clisby’s argument is ap-
parent when we examine the evidence consid-
ered so crucial by Clisby and his expert:

’ Clisby’s low IQ and alcoho! and drug abuse.

First, Beidleman conceded that Clisby is not
even mildly retarded. Second, counsel knew
that Clisby had used drugs and alcohol; but,
as a tactical matter, counsel specifically
avoided relying on this evidence before the
jury. Precedents show that many lawyers
justifiably fear introducing evidence of alco-
hol and drug use. See, e.g., Rogers, 13 F.3d
at 386-88; White v. Singletary, 972 F.2d
1218, 1225-26 (11th Cir.1992). Here, howev-
er, Callahan did eventually testify before the
sentencing judge about Clisby’s drug and
alcohol use. Given the nature of Beidleman’s
testimony overall, it is little wonder that he

also admitted to reaching “much the same

result” as Callahan.

Clisby argues that Beidleman’s “synergy”
theory changes the equation. We disagree.
In this case, the sentencing judge heard Cal-
lahan testify about Clisby’s antisocial person-
ality; Clisby testified, giving the judge an
opportunity to gauge roughly his intelligence,
and finally, the judge knew that Clisby had
used alcohol and drugs. Sentencing courts
need no experts to explain that “antisocial”
people—people who by common definition
have little respect for social norms or the
rights of others—tend to misbehave if they
abuse drugs and alcohol.? Nor must an ex-

assistance, not raised in his original habeas peti-
tion. These arguments are meritless.

2. It has been estimated that 91% of the “criminal
clement” are “antisocial” personality types. Ed-
dings v. Oklahoma, 455 U.S. 104, 126-27 n. 8,
102 S.Ct. 869, 883 n. 8, 71 L.Ed.2d 1 (1982)
(Burger, C.J., dissenting, joined by White, Black-
mun, and Rehnquist). And, we think that most


CLISBY v. STATE OF ALA. 1055
Cite as 26 F.3d 1054 (11th Cir. 1994)

Alabama, No. 85-PT-1251-S, Robert B.
Propst, J., granted petition, and appeal was
taken. The Court of Appeals, 907 F.2d 1047,
vacated and remanded. Rehearing en banc
was granted, 920 F.2d 720. The Court of
Appeals, 960 F.2d 925, reversed and remand-
ed. On remand, the District Court denied
habeas petition. Defendant appealed. The
Court of Appeals held that defendant failed
to establish prejudice from defense counsel's
failure to insist on additional expert testimo-
ny at sentencing.

Affirmed.

Kravitch, Circuit Judge, concurred in
the result.

‘Criminal Law ©641.13(7)

Defendant failed to establish prejudice
from defense counsel’s failure to insist on
additional expert testimony at sentencing in
capital murder trial, absent reasonable prob-
ability that death penalty would not have
been imposed if additional testimony had in-
formed sentencing court of defendant's low
intelligence, and of worsening of his antiso-
cial personality due to drug and alcohol
abuse; defendant was not retarded or incom-
petent to stand trial, and sentencing court
knew of defendant's drug and alcohol prob-
lems. U.S.C.A. Const.Amend. 6.

Cathy S. Wright, Tony G. Miller, Deborah
J. Long, Maynard, Cooper & Gale, P.C., Bir-
mingham, AL, Steven T. Marshall, Maynard,
Cooper & Gale, P.C., Montgomery, AL, for
petitioner-appellant.

Beth Jackson Hughes, Alabama Atty. Gen.,
Montgomery, AL, for respondents-appellees.

Appeal from the United States District
Court for the Northern District of Alabama.

Before KRAVITCH, EDMONDSON and
COX, Circuit Judges.

EDMONDSON, Circuit Judge:

In this death penalty case, defendant Wil-
lie Clisby appeals the district court's denial
of his ineffective assistance of counsel claim,
brought under 28 U.S.C. § 2254. See Strick-

land v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). The case in-
volves a brutal murder committed by a per-
son who had killed before. The detailed
facts are set out in two earlier opinions. See
Clisby v. Jones, 907 F.2d 1047 (11th Cir.)
(per curiam) vacated, reh'g, en banc, granted,
920 F.2d 720 (11th Cir.1990), and Clisby v.
Jones, 960 F.2d 925 (11th Cir.1992) (en bane)
(Clisby J). Clisby mainly argues that his
counsel was constitutionally ineffective at
sentencing for not obtaining additional testi-
mony from mental health experts.

Defense counsel did attempt to win the
appointment of psychiatric assistance at Clis-
by’s first sentencing; he argued that Clisby’s
ability to present mitigating evidence was
impaired by the sentencing court's refusal to
grant access to mental experts. The judge,
noting that Clisby had been found competent
and free of psychosis before trial, refused to
appoint a psychiatric expert and sentenced
Clisby to death.

On remand after direct appeal, the sen-
tencing court did appoint a mental health
expert, Dr. John Callahan. After interview-
ing Clisby, Callahan testified that he was
unable to determine any disorder other than
“possibly anti-social personality disorder.”
Callahan also recounted Clisby's view that
drugs and alcohol caused his mental prob-
lems. Callahan offered little in the way of
mitigating evidence. The judge sentenced
Clisby to death for a second time.

Following a second round of remands, see
Ex Parte Clisby, 456 So.2d 105 (Ala.1984),
and denial of relief in state coram nobis
proceedings, Clisby sought federal habeas
relief. In a 1988 hearing before the district
court, Clisby’s new expert, Dr. Beidleman,
testified that Clisby suffered from three
problems: (1) antisocial personality disorder:
(2) “borderline intellectual functioning,” (IQ
in the range of 80-86); and (3) chronic drug
and alcohol abuse. These three problems,
according to Beidleman, combined in a “syn-
ergistic” way to make Clisby dangerously
impulsive.

Dr. Beidleman criticized Dr. Callahan's
methodology and his failure to report on
Clisby's intelligence level. But, Beidleman
admitted to reaching “much the same result”

we

MARRIOTT CORP. v. DASTA CONST. CO. 1057

Cite as 26 F.3d 1057 (11th Cir. 1994)

pert explain that less intelligent people some-
times make bad decisions.’

Thus, even if Dr. Beidleman’s testimony
had been presented, there is no reasonable
probability that the outcome would have
changed; that is, our confidence that the
death penalty would still have been imposed
is in no way undermined. See Strickland,
466 U.S. at 694-96, 104 S.Ct. at 2068-69. In
death penalty cases, Strickland’s prejudice
inquiry is no sanitary, academic exercise—we
are aware that, in reality, some cases almost
certainly cannot be won by defendants.
Strickland and several of our cases reflect
the reality of death penalty litigation: some-
times the best lawyering, not just reasonable
lawyering, cannot convince the sentencer to
overlook the facts of a brutal murder—or,
even, a less brutal murder for which there is
strong evidence of guilt in fact. Jd at 696,
104 S.Ct. at 2069; see also Thompson v.
Wainwright, 787 F.2d 1447, 1453 (11th Cir.
1986) (“Nothing [the lawyer] could have pre-
sented would have rebutted the testimony
concerning Thompson's participation in the
brutal torture murder.”); Daugherty v. Dug-
ger, 839 F.2d 1426, 1432 (11th Cir.1988) (“giv-
en the severity of the aggravating circum-
stances,” failure to present psychiatric testi-
mony was not prejudicial).

Clisby had killed before. He killed his
victim in this case brutally with an axe, in the
victim’s own house. He argues that the sen-
tencer should have been told that Clisby was
unintelligent—but not retarded and not in-
competent to stand trial—and that his “anti-
social” personality was made worse by his
drug and alcohol abuse. Given the aggrava-
ting and mitigating factors, nothing Clisby
has put forth undermines our confidence in
the outcome of his sentencing proceeding.

judges view drug and alcohol abuse as highly
predictive of a propensity for criminal activity.
Cf. U.S. Sentencing Guideline § 5H1I.4 (“Sub-
stance abuse is highly correlated to an increased
propensity to commit crime."). But, we doubt
that many sentencers view substance abuse as a
strong mitigating factor. C/f., Rogers, 13 F.3d at
388 (noting reasonableness of lawyers’ fear that
defendant's voluntary drug and alcohol use could
be “perceived by the jury as aggravating instead
of mitigating’) (emphasis in original).

3. In addition, Beidleman’'s testimony likely
would have been disputed if it had been offered

Clisby has failed to show us that he suffered
prejudice, even if we were to assume inade-
quate performance on the part of his defense
counsel.

The denial of relief is AFFIRMED.

KRAVITCH, Circuit Judge, specially
concurring:

I concur in the result.

MARRIOTT CORPORATION, Plaintiff-
Counter-Defendant—Appellee,

Vv.

DASTA CONSTRUCTION COMPANY,
Defendant—Counter—Claimant-
Appellant.

No. 92-2981.

United States Court of App<als.
Eleventh Circuit.

July 22, 1994.

Property owner brought suit against
contractor on fast-track construction project
to recover payments it had made on-contrac-
tor’s behalf to contractor’s unpaid subcon-
tractors and suppliers. Contractor counter-
claimed on theory that property owner had
not only failed to perform its contractual
obligations but interfered with contractor's
performance. The United States District

at sentencing. As we see the record, Beidle-
man’s testimony would have helped Clisby not at
all: the State’s experts (Dr. Poythress and Dr.
McClaren) generally agreed with Beidleman’s
conclusions (thus undercutting the significance
of his testimony), while offering important criti-
cisms. For example, Dr. Poythress testified that
an “antisocial” person such as Clisby is not nec-
essarily unable to control himself—nonconfor-
mance may be a matter of “choice” or “prefer-
ence; Dr. McClaren pointed to several facts
indicating that Clisby acted quite deliberately on
the night of the murder.

|
|
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oe CORB, Phillip, black, eléc, Alas (Montgomery) 3-11-19)9. 6 8 2 er ee


COBB, Wildis, poss. ex,

Birmingham Hee

\T0 PA THE DEA DEATH PENALTY

wits Cobb Was Was Convicted of

Murder,

SHERIFF O'BRIEN’S FIRST

“Prepare to Meet Me in Heaven,” Said Cobb
to His Wife, ag the Great Iron

Door Was Closed.

|
ee ee rrr

Willis Cobb, the negro charged with
-itthe unuider of Gus Heetor at Bilosshurg
‘whieh occurred the 25th of last May has
been found guilty and ‘the pesky fixed

‘at death.
The cine Was piv
court jury at 11:30 o'clock yesterday, and

oe o'cioek filed into court and ren-

‘ny to othe enminal

' itt 4 their verdict, as follows:
-, find the def«ndant guil-

Ye, the fury
ty ancl fx bse pat nistment et cesth

Cobb sirosi ep emewhen meres. 'He
says that the stat: witnesses Tete ag
Hestor's frends and that he was not
, surprised at the verdict of the jury.

7 | He was taken back ‘to jail to awall
entenes. His wilt and several Peicnd
followed him to the door and when hé
was placed behind the dron grating hand.
ed the warden 50 cents to give f him.
Ags hea took the money he turned to then:
and said: “Good-bye. Prepare to mec
/ ie lin heaven.”

The crime for which Cobb has been
given the death pinalty was committed
at Blossburg on the Southern railroad
the 25th of March last. Cobb admits the
shooting, but claims he was defending
ee fim an attack Hector was mal.
i upon ‘hi ‘f
defenke Gis dot. rate aaa rn a

SUE ated by wit-
Nesses who were present,
te will be the Diet eeealtien etties oe
at has oe-
cUrred in this county in some time, and
will be the first one to take place
the adminis sea sded
mn. erator of Sheriff O'Brien.

The case of John Jenking charged with
murder which Was Set for trial yester.
day was passed, and ecurt adjourned un
tll 9 o'clock, er.

ee

Bas ID»
let him
t out of

Minutes

old him
S going
tup all
| Way to
e from
he mill,
Gorter)
ke him

ae
that ‘he

nt him

ti
1s are

larac-
Gtion,
So.
ed
M 199,

x :

fi rst
uted,

Bf pr ain i igi Sorte slg

eA at ny agrees hee

Aire

SR ue

ie

SN Siig

conan oSJONKS v, MULTIN 6-5
cab Cite ne 38 8o.2d 281

the effect that he intended. to do 80, was
relevant and material on the. question of
motive. Burns vy. ‘State, 246 Als, ate 19
$o.2d, 450,

During the arzument: of she Solinitee Sor
the States attorney for appellant. made ob-
jection to a statement “to. the effect”. that
“this system of the Governor of the, State
having exclusive and sole power, to. com-
mute anybody who. is under.the death. pen-
alty, is rotten: to commute.a-sentence.”,

[6] As we understand’the record, the
reference in the argument: toa commuta-
tion of sentence is to the commutation of
the death: penalty given appellant in the
former charge against: him, and not to a
prospective death sentence ‘in: the instant
case. As we have said, evidence of a
former commutation. is admissible. . John-
son v. State, supra, Asa consequence, the
argument was not improper. » The. argu-
ment here is. clearly distinguishable from
that which worked a reversal in the case
of Boyle y, State, 229 Ala. 212,: 154 So,
575, and other. similar cases...

We have carefully examined the record
under the requirements of section 382(1),
Title 15, Code, and. are. fully persuaded
that no reversible error intervened, fe

- Affirmed,

All the Justices concur, cxcent GARD.
NER, Gs J not eitHina fe

.
‘© © Kev mumeer System
rT

JONES v. MULLIN et al. _
 4DWv. 605,

Supreme Court of Alabama, ‘
Jan, 13, 1949,

4, An pea and error. €=655(3)

The transcript of Seaitgae would not
be stricken, though not filed within 70 days
from overruling of motion for new trial,
where appellant. filed affidavits. showing
timely request for. preparation: of tran-
script and.that delay was due to reporter
being heavily loaded with work, and no ma-

38 SO. 20-18% oe .

ae Me og

terial. omission On; defects. in: transcript
were pointed out by appellee with support.
ing affidavits as required by rule of prac-
tice. Rules of Practice in ‘Supreme: Court,
rule 48, Code 1940, ae ao PEST

2. Pleading © 193(5)

Objection’ that: Pact: tice do not
constitute a cause of action or defense
must be raised by demurrer. oe) Ee:

3. Pleadinge=355

_ Objection that though sufficient facts
are stated to. constitute a cause of action
or defense, they are not Stated in the man-
ner required by rules, of ‘pleading, should.
be raised by motion to strike, we

ay

4, Pleading €354(2)
In action of assumpsit plea of not guil-
ty was subject to motion to strike since it

was not the “general issue” which is an

averment ‘that the allegations of cambtpiet
are untrue... Code 1940, Tit. 7, § 225, !
“See Words and’ Phrases) | Permanent
Bedi for other judicial constructions |
_and definitions of General Tesne’é 32: 3333

5. Pleading €=354(2)

‘Plea of the general issue’ in short. by .

consent with leave was subject to motion
to strike because it was pleaded in short
by consent and consents was denied 3 in) the
motion to strike. | air ereaa Meiers

6. Pleading ©7354(2)

‘In action of assumpsit for work done :

und materials furnished in repairing a
tractor for defendant, plea of recoupment
for loss of use of, tractor due to plaintiff's
failure to properly | repair, it was not sub-
ject to motion to strike, pial ath
2: Appeal and error ean AU DME
Motion ‘in writing ‘to. strike | blew of

recoupment became a part’ of the record

and ‘ruling: thereon was ‘reviewable with:
out exception thereta-n% ode 1940,: Tit;
§ 214. Tih ea aa cas
8. Work and jahoe C26 |
_. In action of assumpsit for work ‘done
and material furnished in repairing a trac-
tor for defendant, Plaintiff had burden of
proving either. that amount of the account
was agreed upon, or that the. work was
gone ina good and workmanlike manner,

poke

"JAMES W. COBURN, 38, Chilton Co. itinerant farm worker, executed at 14 mins.
past midnite on 9-4-1964. Execution had been stayed 11 times by Wallace. After
entering chamber, smiled and shook hands with several people before chair.

Last words, "Everything's all right." Was from Clanton. Convicted of robbery
of Mamie Belle Walker, an ex-girl friend, whose mutilated body found in her
Selma cafe in Dec., 1959. A 45 year old divorcee, she had been brutally clubbed
and shot in head with her own rifle. Coburn prosecuted only for robbery. Was
an ex-convict having served burglary term form Dallas County in 1949. He was
caught in Chicago 5 days after the murder. He said he remembered nothing nite
of murder because he was drunk. In addition to prison chaplain, 2 other ministers
whose presence he requested, were present. Warden said when informed, Wal lace
refused clemency on nite before, he was quiet and showed no outward emotion.
Last meal: chicken, FFpotatoes, rolls, milk, coffee, and coconut cream pie."

MA 9-4-1964.

, Jamies We, white, clec., Ala, (Dal

Ste Faees to

= om,

Pies <n

aida

pia. Corl. ts. 202, [959.2 bls


de-
him
ting

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that
ting
ion
then
psome
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, od at
n the
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the

o the
kif,”
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short
with
»f the
it and
cdece-
‘ed to
‘ell as
-edent
were
m the
od off
so cut
» keep
holes,

@ ich

ion of
stated
use in
* visit-
le de-
and its
imined
he re-
ch ap-
of the
. intro-
estified
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\ a pas-
t he al-
om the
ut. He
us ona
-edent’s

a wag-

‘s yard.
»xicolo-

7 ider the

JOHNSON v. STATE Ala. 19
Cite as 24 So.2d 17

porch and on the wagon bed were caused by
the blood of a human being.

The defendant testified in his own behalf.
His version of what transpired on the day
of the killing is substantially the same as
was related by Sheriff Coleman, a witness
for the State, who testified as to the con fes-
sion made to him by the defendant. The
defendant denied that he originally suggest-
ed the killing of Mr. Walton, placing that
responsibility on Richard Brown. There
are some other discrepancies between his
testimony and that of witness Coleman, but
they are of minor nature, merely relating to
details. Defendant admitted that he and
his accomplice, Brown, planned the murder,
that he was present at the time the shots
were fired and in fact, in answer to the
question put to him by Brown, “Must I
shoot again?” stated that. he said, “Yes”;
that he and Brown disposed of the body and
that each of them took some of the person-
al property which was removed from the
body of the deceased. He admitted at-
tempting to remove the blood stains from
the porch and from the “sleeper” under the
porch. The defendant claimed that he par-
ticipated in the murder because of his fear
of his accomplice, Richard Brown.

[1] The defendant’s major contention
upon this appeal is that there is an absence
of evidence in proof of the corpus delicti
independent of the evidence of defendant’s
confession, and therefore the court erred in
admitting the confession. With this con-
tention we cannot agree. Proof of death as
a result of force unlawfully applied is all
that the law requires as a predicate for the
introduction of a confession voluntarily
made. It is not incumbent upon the State
before a confession may be admitted to in-
troduce evidence tending to identify the ac-
cused as the guilty agent applying the un-
lawful force causing death. Vernon v.
State, 239 Ala. 593, 196 So. 96; Jordon v.
State, 225 Ala. 350, 142 So. 665; Shelton v.
State, 217 Ala. 465, 117 So. 8.

[2] The rule is well settled in this juris-
diction that circumstantial evidence may
afford satisfactory proof of the corpus de-
licti and if facts are presented from which
the jury may reasonably infer the crime
has been committed, the question must be
submitted to the jury, and other evidence
tending to implicate the accused is thereby
rendered admissible. Desilvey v. State, 245
Ala. 163, 16 So.2d 183; Rowe v. State, 243
Ala. 618, 11 So.2d 749; McDowell v. State,

138 Ala. 101, 189 So. 183; Hill v. State,
207 Ala. 444, 93 So. 460.

[3,4] The court did not err in permit-
ting the State to introduce testimony rela-
tive to the physical conditions at the home
of the decedent, where it contended that the
crime took place, prior to the introduction
in evidence of the confession of the defend-
ant. This testimony was admissible not
only for the purpose of shedding light on
what transpired at the place where. the
crime was alleged to have been committed,
but also in corroboration of the confession
of the defendant. The order of proof in a
matter of this kind may be determined by
the trial judge. McDowell v. State, supra;
Scott v. State, 141 Ala. 1, 37 So. 357.

[5] It is contended that the court erred
in permitting State’s witness B. W. Cole-
man to testify that there were no threats,
promises, inducements or offers of reward
made to the defendant to get him to admit
his complicity in the crime, in that such
statements were but the conclusions and
opinions of the witness and therefore not
admissible. This contention is without
merit. In the case of Crain v. State, 166
Ala. 1, 4, 52 So. 31, 32, it is said: “In the
laying of a predicate for the introduction of
evidence of confessions made by the de-
fendant, the question, ‘Were there any
promises, threats, or inducements made to
the defendant before the statements were
made by him?’ is not open to the objection
that it called for a conclusion of the wit-
ness, and was properly allowed by the
court.”

[6] From an examination of the record
it appears that the confession made by this
defendant and in evidence was properly
introduced, a sufficient predicate having
been previously laid for its introduction
under the many decisions of this court on
this subject. Daniels v. State, 243 Ala. 675,
11 So.2d 756. The defendant did not at-
tempt to controvert evidence offered in lay-
ing such predicate either by cross-examina-
tion or by evidence aliunde. As before
pointed out, the defendant testified in his
own behalf and made no effort to rebut the
proof offered by the State that the confes-
sion was given voluntarily. In fact, his
testimony was in most material respects
identical with the confession as related by
State witness B. W. Coleman.

[7] Defendant contends that the trial
court erred in refusing to give to the jury
at his request a certain written charge. We


20.. Ala.

can find no such written charge in the rec-
ord filed in this court and hence there is
nothing before us in this connection for re-
view. § 273, Title 7, Code 1940; Berry v.
State, 231 Ala. 437, 165 So. 97; Teal v.
State, 30 Ala.App. 57, 200 So. 577.

[8] Although at the time of his ar-
raignment the defendant pleaded not guilty
by reason of insanity as well as not guilty,
there was no evidence introduced by the de-
fendant in support of his insanity plea and
therefore it was not incumbent upon the
court to charge upon this phase of the law.
Granberry v. State, 182 Ala. 4, 9, 62 So. 52;
Rice v. State, 204 Ala. 104, 85 So. 437.

[9] In accordance with our duty in
cases of this character, we have examined
the record for any error, whether pressed
upon our attention or not.

We find no error in the record, and the
judgment must be affirmed. It is so ordered
and the date of the execution of the sen-
tence of the court is hereby fixed at Friday,
the 25th day of January, 1946,

Affirmed.
All the Justices concur,

Ww
© & KEY NUMBER SYSTEM
T

HALL v. STATE.
4 Div. 391.

Supreme Court of Alabama,
Dec. 6, 1945.

1, Criminal law @=517(4)

In prosecution for murder, proof that:

death resulted from force unlawfully ap-
plied is all that the law requires as a
predicate for the introduction of a confes-
sion voluntarily made.

2. Criminal law €=517(4)

In prosecution for murder, proof of
corpus delicti was sufficient to authorize
introduction of defendant’s voluntary con-
fession where as a consequence thereof
deceased’s body and her personal prop-
erty were discovered.

3. Criminal law @=537
Where defendant in murder prosecu-
tion voluntarily confessed that he caused

24 SOUTHERN REPORTER, 2d SERIES

death of deceased by holding her head under
water in pool until she quit kicking and, as
a consequence of the confession, the body
was discovered, that portion of confession
was admissible along with proof of fact of
discovery of body.

4. Criminal law €537

Where defendant’s confession or in-
culpatory admission in nature thereof
leads to discovery of physical facts which
establish truth of confession, so much of
confession as leads to facts thus discovered
is admissible along with proof of those
facts.

5. Criminal law €=517(5)

Where defendant’s voluntary confes-
sion disclosed that he intercepted deceased
and kept her within his power through
force from 7 a.m. until 1 p.m. and even-
tually drowned her by holding her head
under water until she quit kicking, one
continuous criminal} ‘transaction took place
from interception until decedent .was
drowned, and that part of confession dis-
closing that during such period defend-
ant twice ravished decedent was of the
res gestae of the murder shedding light on
and furnishing motive for the killing and
could properly have been placed before

jury.

6. Criminal law @=1169(5)

Defendant in murder _ prosecution
could not complain that that part of his
voluntary confession which disclosed that
he had twice ravished victim before killing
her left its impression on minds of jury
even though court excluded it and in-
structed jury not to consider it when such
part of confession was competent and
could well have been left before jury,

7. Criminal law €478(1)
Toxicologist with requisite experience

and education was competent to testify.
that frothy purge from lungs found on.
nostrils and mouth of murder victim

showed that death was caused by drown-
ing.

8. Criminal law €=478(1)

Mortician who examined body of mur-
der victim before its removal from water
was competent tx testify to a frothy purge
on nostrils and mouth of victim at time
body was discovered as indicative that
death was caused by drowning.

Appeal
County ;

Peter |
der in th
A ffirm<

Lee J.
I. Grubb,

Wm. h
©. Harri

BRO\\

The d
dicted, ti
of murcd:
he ** *
aforetho
drowning
the defe:
The app
appeal s
Title 15,
Code 194

Two q
peal. Tl
ficient pr
fy the a
fession 1
the volu
Boyd tha
con fessio
deceased
in his po
and was
of this tc
cate its
the insist
eradicab!

The w
State gox
a comely
age, and
Eufaula
work at

a.m. Ti
her place

morning
per’s resi

between |

was a

morning
of work
her pursy
kodak ph
family, i
and her
her own
of her

(

on-

an,
ion
wlan
‘ion
ili-
, ‘ge
ing

presses erieen SienAII a es

. 7
:

BROWN v. STATE ya tes Ala). 223.
Cite as 24 So.2d 223

lowance by the Government, plus the fath-
er’s pension, were sufficient to justify the
payment of current taxes, and granted the
stay.

In Cortland Savings Bank v. Ivory, Sup.,
27 N.Y.S.2d 313, at the time defendant was
called into active service, he received $203.-
a) monthly, and while in service he re-
ceived $154 for the first six months and
later $177.30 per month. The court in the
exercise of its discretion granted the stay,
reducing. the monthly. payments from $44.-
33 to $26.95. .

[3] Here, defendant King’s ability to
comply with the terms of the obligation is
very materially affected by reason of his
military service, and we are reluctant to
say the court in any wise exceeded its
broad discretion in directing that only cur-
rent taxes and hazard. insurance be paid
monthly out of his meager income.

It necessarily follows that the motion

for. mandamus must be denied, and the
judgment of the lower court affirmed.

Affirmed.

GARDNER, C. J. and BROWN and
SIMPSON, JJ., concur. |

o E KEY NUMBER SYSTEM

anms

BROWN v. STATE.
2 Div. 216.

Supreme Court of Alabama.
Dec. 20, 1945.

{. Criminal law 6=517(1), 530

In murder prosecution, wherein de-
fendant did not testify, his oral and writ-
ten confessions, shown without dispute to
have been entirely voluntary, were proper-
ly admitted, notwithstanding discrepancy
between them as to whether defendant or
his companion in commission of crime fired

fatal shot.
2. Homicide 6237

In murder prosecution, testimony of
ntendent, was Jack Walton, who lived alone in the

superintendent and assistant superi

of state reform school, in which defend-
ant had been confined, that they consid-

he appeared to be dull in school and ins.
different as to work, was insufficient to sup-
port defendant’s plea of not guilty because
of insanity, especially in view of state’s
witnesses’ countervailing testimony.

3. Infants €=68

In murder prosecution, trial judge
owed no mandatory personal duty to as-
certain defendant’s age on his counsel’s -
suggestion that defendant was under 16
years old, but properly directed counsel
to offer proof substantiating such sugges-
tion as procedural matter in accord with
rule that trial judge may determine order

of proof. Code 1940, Tit. 13, § 363.

4. Criminal law 6=—594(2)

The question of continuance of mur-
der trial because of absence of defendant’s
witness outside state was. within trial
court’s sound discretion.

5. Criminal law €=400(5)

In murder prosecution, wherein de-
fendant’s counsel suggested that defendant
was under 16 years old and hence within
juvenile court’s jurisdiction, a family Bible,
in which defendant’s name and date of his
birth were entered by his aunt, since de-
ceased, was admissible in evidence on qués-
tion of defendant’s age.

6. Infants €>68 .

Evidence on hearing of suggestion that
one charged with murder was under 16
years old and hence within juvenile court’s
jurisdiction showed that he was 19 years

old.

—

Appeal from Circuit Court, Hale Coun-

| ty; W.E. Callen, Judge.

Richard Brown was convicted of mur-
der in the first degree, and he appeals.

Affirmed.

A. T. Reeves and R. Randolph Smith,
both of Selma, for appellant.

Wm. N. McQueen, Atty. Gen., and John
O. Harris, Asst. Atty. Gen., for the State.

GARDNER, Chief Justice.

The appeal is from a judgment of con-
viction of murder in the first degree, with
infliction of the death penalty, The victim

country some 15 miles from Greensboro,
Alabama, and whose body was dragged

ered defendant of unsound mind because from the river some two or three weeks


Y94 Ala.

after he had been missed from his. home
and community.

This defendant was jointly indicted with
one Ernest Johnson, but upon a severance
being demanded, separate trials were had.
The history of the case, however, with all
salient and revolting details, appears in the
case of Ernest Johnson v, State (Ala.Sup.,
24 So.2d 17) and need not be here re-
peated. Any interested reader is referred
to the facts.as outlined in that opinion,
as well as many rulings there made which
are likewise applicable here.

Illustrative is the question of the suf-
ficiency of the corpus delicti, and all the
circumstances pertaining thereto, includ-
ing the proof as to the condition of the
body of deceased, the blood stains, and the
competency of the witness Grubbs to testi-
fy as an expert. Each of these questions
was fully treated in Ernest Johnson v.
State, supra; and to separately consider
them here in this companion case is deemed
entirely unnecessary. Suffice it to say, we
adopt the holding upon these questions in
the Johnson case as here equally applicable.

[1] The two confessions, the oral as.

well as the written confession, were shown
to have been entirely voluntary. Defend-
ant did not take the stand, and all the proof
as to the voluntary character of these con-
fessions.was without dispute. There was
one discrepancy in the two confessions.
Defendant at first stated his companion in
crime, Ernest Johnson, fired the fatal shot,
but in the subsequent confession admitted
that he himself fired the shot. That these
confessions were properly admitted is too
clear for further discussion. Johnson v.

State, 242 Ala. 278, 5 So.2d 632.

There remain two questions to be brief-
ly considered, which were not involved in
the Johnson case.

[2] The defendant in the instant case
plead not guilty and not guilty by reason
of insanity. His proof in support of his
plea of not guilty by reason of insanity
rested upon the testimony of the superin-
tendent and his assistant of the Alabama
Reform School for Juvenile Negro Law
Breakers. The evidence of these two wit-
nesses, when reduced to the last analysis,
is to the effect that they considered the
defendant of unsound mind because he ap-
peared to be dull, so far as school is con-
cerned, and indifferent as to work. He was
in the reform school at an earlier age, and
spent two years there, having been pro-

24 SOUTHERN REPORTER, 2d SERIES

moted from the first to the second grade, |
But they testify to no facts beyond that
indicated above.

We are impressed that this testimony
falls short of the rules announced by this

Court in the Parsons case, Parsons v.
State, 81 Ala. 577, 2 So. 854, 60 Am.Rep.

193, and followed in numerous subsequent ©

decisions.

But even should it be accepted as suf-
ficient for submission to the jury, the State
offered countervailing testimony of wit-
nesses who had known the defendant, and
for whom he had worked, who testified
that his mind was entirely sound and that
he was a good worker. . The trial judge
charged fully upon this question of insan-
ity, and in any event, the jury would be
fully justified in rejecting the plea as not
well founded in fact.

[3] At the inception of the trial coun-
sel for defendant moved the court that the
case be transferred to the juvenile court
upon the theory that the defendant was un-
der 16 years of age. Title 13, Sec. 363,
Code 1940. Counsel appear to be under
the impression that by virtue of this stat-
ute it was the mandatory duty of the judge
himself to make inquiry and procure proof
as to the age of the defendant upon the
presentation of such a motion. This mo-
tion was afterwards amended so as to call
it a “suggestion” rather than a motion, and
subsequently there was a plea filed to the
jurisdiction of the court, all based upon the
same idea that the defendant was under
16 years of age.

True, in Powell v. State, 224 Ala. 540,
141 So. 201, speaking of the defendant,
Eugene Williams, whose case was also con-
sidered on that appeal, it was stated that
since the juvenile delinquent is a ward of
the State it is the duty of the trial court,
upon suggestion that the defendant was
under 16 years of age, or if his personal
appearance suggested a doubt as to his
age, to ascertain his age and if found to
be under 16 to transfer the cause to the
juvenile court. But the expression in that
opinion, as to the duty of the trial court
to ascertain the age when such suggestion
is made, is to be construed not as a per-
sonal duty of the judge to himself ascer-
tain the facts, but a duty to see to it that
available. evidence is» produced under his
direction by officers of the court so that
the true age of the defendant may be as-
certained. Defendant’s counsel were of

ca eee


JOHN BURCHFIELD, Electrocuted Kilby Prison |
(fhambers County) on March 9, 1928,

"Lafayette, Oct, 27, 1926-hile a mob waits for the kidnapper and slayer of Howard Dudley, 15-
year-old school boy, members of the sheriff's force, armed with a warrant for the arrest of
John Burgh€ield, who is believed by Chambers County officers to have committed the crime,
searched the countryside, ‘he warrant was issued on the basis of alleged threats made about a
a year ago by Burchfield on the boy's life, deputi es said, and upon the information that a

man answering Burchfield's description had tried to set] a pistol with which he said he had
killed a boy to an A. B, & A. foreman and Standing Rock, Ala, The schoolboy's body was found
in a clump of underbrush on the banks of Katie Creek, about a mile and a half from the boy's
home, two miles from Abanda, Ala, Young Dudley failed toreturn home from school on Monday
(10-273, At 6 PM that day his parents instituted a search and a large posse of neighbors
traced tracks to within half a mile 68 the body, ‘uesday morning the search was nenewed and
the body discovered, A bullet had pierced the boy's heart. The body was found lying face
downward, Nearby was a school book, The boy had been accosted by the kidnaper shortly after
getting off the school bus about 200 yards from his home, according to officers, The boy was |
seen crossing a field with a man, but nothing was thought of it at the time. Mr. and Mrs,

Jeff Davis and Mrs, Mather Davis, crossing a field, noticed them, However, officers advanced,
the theory that young Dudley had been gagged and was being forced to walk along, The body was
discovered when Mr, and Mrs, Davis told of their seeing the pair cross the field, Foot

tracks were found, then a path made by a dragging body, Apparently the kidnaper had shot

the boy about a quarter of amile from where the body was found, had placed a chain about the
body and dragged it to the spot where it was found, officers said, Burchfield disappeared
simultaneously with young Dudley, deputies learned, Sheriff 2, G, Simpson of Chambers Co, |
learned that a man answering Burchfield's description, is said to have told a foreman for the
A. B. & Ae Railraod at Statnding Rock, Alabama, that he had killed a boy and wanted to sell
his pistol for $6, The man is also said to have told him he concealed the body in the briers.
Persons from all sections gathered to join in the hunt for the body, Many remained throughout
the night at the Dudley home, where the mother of the slain boy lies prostrate, One of the mob
made the threat: ‘If Burchfield is found he'll never have atrial,' Another said: 'Busehfield ©
Burning is too good for him! If the accused man is located, it is probable he will be taken *
to a remote county for safekeeping, BIRMINGHAM NE‘, Oct. 27, 1926

"Lafayette, Oct. 28-John Burchfield, young farmer of Abanda, charged with the murder of Howard —
Dudley, high school boy, whom he is alleged to have kidnaped, will not be brought back

here if affested, but will be taken to a jail somewhere else because of fear that he will be
mobbede..elhe hunt continues unabatedesse" NEWS, Oct, 28, 1926,

"Opelike, Alae, 10-30-1926-John Burchfield, 23, sought in the kindap and slaying of Howard
Dudley, 15-year-old school boy at Abanda Monday is safely in jail here following his capture

a mile from Abanda where he&sssaid to have confessed, He was brought under heavy gaurd from
Lafayette where a few days before a mob had threatened to lynch the layer on sight, There
were no disturbances when the party came to the city, Sheriff Simpson of Chambers County said,
Burchfield is said to have told his captors he slew the boy because of an old grudge, Cham-
bers County officials had been working on the theory that Dudley knew of Burchfield's boot-
legging activities and was killed because Burchfield feared exposure, He was captured within
a mile and a half of the scene of the crime, He had wandered through a great distance and had
returned Friday night (10-29) toakleeshelter inthe home of Willie Taylorg who, with his
family, had spent the night away, Taylor's children, returning Saturday morning, found Burch-
field in bed, They spred the alarm and a posse was formed, Burchfield had taken shelter in
the attic of the house when the posse arrived, Unarmed, he offered no resistance, The posse
took him to Layfatte and delivered him to Sheriff Simpson who took him to Opelika jail,"

NEWS, Oct, 30, 1926.

Trial began Nov. 15, Defense to be insanity NEW Nov, 15, 1926, |

State attorneys called witnesses to stand who had known all of his life to testify he was
sane, His father, brother, sister and cousin testified he had been acting strangely for
several months, Defense claimed he had become insane for brooding over an insult made by
the boy to Burchfield's sister in preceding March, Burchfield seemed unconcerned about

fate, now and then running fingers through long hair but paying no attentions to proceedings
ae Largest crowd to have averattended trial in Chambers County assembled, NEWS 11-16

ficers of the court. The defendant was be-
fore the trial judge, and for aught appears,
had the appearance of one who was con-
siderably beyond that age. The trial judge,
therefore, had the right to suggest that
counsel for the defendant proceed to pro-
duce some evidence to substantiate the sug-

‘gestion made. The trial was delayed, a

recess of the court taken, so that counsel
for defendant might have an opportunity
to procure the necessary proof.

The direction of the judge to counsel for
the defendant that they proceed to offer
proof was but a procedural matter, and in
accord with the rule that the trial judge
may determine the order of proof. Mc-
Dowell v. State, 238 Ala. 101, 189 So. 183.
As we have observed, the counsel were
officers of the court, and it was an orderly
manner in which to start in progress the
process of the court for the ascertainment
of the truth. We find nothing in any of
this procedure of which this defendant can
complain.

[4] The question of continuance on
account of the absence of defendant’s wit-
ness Brown, who appears to have been out
of the State, was a matter within the sound
discretion of the trial court. Sanders v.
State, 181 Ala. 35, 61 So. 336.

It seems that in 1942, this defendant was
ordered confined at the reform school by
the Juvenile Court of Marengo County for
the offense of grand larceny—the theft of
a horse—and that he remained two years
at this institution. Along with the judg-
ment ordering his confinement at the re-
form school were some statements concern-
ing his parentage, date of his birth, and
the like. This record was offered in evi-
dence and a notation found therein indicat-
ing that the date of his birth was in 1929.
We judge from the record that there was
no birth certificate, and defendant’s coun-
sel appear not to have been able to ascer-
tain any further proof. The State then
offered countervailing evidence consisting
of admissions by the defendant that he was
19 years of age, and by the clerk of the
draft board that in February, 1945 he gave
his age as 19. The clerk testified that he
placed the age of this defendant on a card,
and on this card was written “born April

25, 1926.” Also, was the place of birth

given as Demopolis, Alabama, and the
name of the mother, Ida Thomas. The
24 SO.2d—15

BROWN v. STATE Ala. 995
Cite as 24 So.2d 223

card was not offered in evidence, as coun-
sel appear to understand, but was used as
a memorandum for this witness as to what
occurred upon the occasion of defendant’s
registration. 70 C.J. pp. 580-583.

[5] The State also introduced the wit-
ness, Will Frazier, who lives in Demopolis,
and who had known Richard Brown, the
defendant, since his birth; that his moth-
er was known as Ida Brown, and later as
Ida Thomas. The witness identified a Bi-
ble which had been in his possession for
seven years. He got this Bible from the
defendant’s aunt, the sister of defendant’s
mother. This aunt. in now dead, and has
been dead for seven years. She left the
Bible with this witness, and it has been in
his possession since that time. It has in it
the entry of the name of this defendant,
Richard Brown, with the date of his birth
“7/11/1926.” This entry, he states, was in
the Bible when he got it, and that the de-
fendant’s aunt made the entry. At the
time she made the entry defendant was
three or four days old, and the witness
saw her when she made the entry. This
was all in Demopolis.

This family Bible was admissible in evi-
dence under our authorities. Bradley v.
State, 215 Ala. 140, 110 So. 162, 163; Cher-
ry v. State, 68 Ala. 29. As said in the
Bradley case: “The family Bible contain-
ing the name and date of birth of a mem-
ber of the family is ‘competent and ad-
missible evidence when the person who
made the entry therein is dead or un-
known.’ ” As we have observed, his aunt
who made the entry is long since dead.
See also 20 Am.Jur. pp. 799-801.

[6] After considering all the proof and
viewing the defendant on trial, the court
reached the conclusion that the defendant
was well over 16 years of age. And we
think it quite clear the great preponderance
of the evidence is to the effect that he was
of the age of 19.

Mindful of our duty in cases of this
character, we have examined the record
with care and find no error to reverse. It
results, therefore, that the judgment of
conviction is due to be affirmed. It is so
ordered.

Affirmed.

All the Justices concur.

SE = ac pn wets tr eR
SP Eas ea 4

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tremens eae sot St te oe


BRYER, Walter, black, hanged Montgomery, Alabama, 1-12-1912,

Pe * Ny

ie laying iCloraB

Walking. with m ‘undeviating = *step, ||
his ‘head high” ‘in the belief ‘ot ‘divine

‘forgiveness. for:his’ crime, Walter Bry-)
“6r mounted the: gallows | ati,the “Mont-:.

) | Somery, County “Jail ‘Friday, #morning, ,|.

e pegun,:

where, 7 ‘at 10248 0’clock’!th

trap, ‘was
sprung; ‘andhis! soul’ sent: 10

n> ts: “final?

ght <to fa “higher:. throne. ‘of. picinear
where?’ ‘conversion * ‘ before s.

preparéd © it to. stand.é:.

“Promptly at‘10:30,0’clock; “Bryer “was:
taken. from ‘his: cell,’ din’ the” condemned
‘Foom “and ‘the march :: ‘tothe’ “gallows
“2 Preceded by’ Sheriff. “Horace:

“| Hood ‘and attended by. Rev./A;J. Stokes.

‘pastor of the Columbus. : Street Colored
Baptist. Church, and “another. negro’
minister, Bryer walked, into the! execi-.
tion: room, which’ was’ crowded: with, a:

“..number:® of’ spectators, ‘newspaper, men/

and officers, with a: coolness - nothing
short: <of. “remarkable. < The’ ve party.
‘marched.- up. “the: short “iron: stairway:
leading: to: the. ‘platform” of ‘the death

‘instrument, “where just : ‘preceding: ‘the:

e execution brief religious exercises were

ufac-
swith ,
tated”
*the::
“not +

held,’ the..other ‘members’ of ‘the’ party
remaining. by -his* side until-after..the

“| death cap ‘had. been. placed: over. his
sitions ©

wommis-
mock “in.
pose...
pened
Benta-:

eyes. and the: trap’ sprung, .after’: ‘the
dull thud; of ~which ‘the silence’ of the
dead ‘prevailed * ‘throughout’ ‘the ‘room
until’ the three © “attending: physicians
had pronounced him dead. and. ordered
his body: cut down to;.be turned over’
to. the’ undertaker, and ‘carried | away, to
‘be _prepared for burial. : :

© Confesses to Crime,

YB tore: Bryer took his stand on Sthe.
:| trap ‘of. the ‘gallows, ° ‘eighteen ‘ winates
were! consumed by. the: short exercises,’

n which. ‘were ReEnn ‘by. pel reading’ ot a

id ‘for: shim? ‘also.
cn toxmake’ his<

at: BANK

ALG
}reeont: ‘macting vot:
pyation nas eee

who ‘then asked: that. yeponee pray,
When" ‘Bryer, was. ‘allowed.:|
‘final’ statement) *he ‘con,

rien

RRR ee Cea R id

ee "ELECTED |

wine ‘National sats” “Greenville;
ers Ate Elect {Officers 5)
(ee LR

: Al:
the directors: Key

3] cas ler.f

A atock: a

the” ‘aged ‘negro. woman,
1911;'and* from, whom" he® asserted: he’
took” $5.35, ‘which he: said was not: the
real’ motive for: the’ crime,, but’ that: he
had: committed, the act in:order to. ‘pron
‘fect -himself:and family./from death “by.

»witchcraft, alleged’ to‘have’ been! race.

ticed” by, the; dead’ “woman? +
When: ‘the! “cords.~ were: miheaa about:

by ‘his legs’ ‘to hold them’ ‘securely’ and ‘his

wrists: handcuffed,’ he: seemed to “:real-
ize that’ life was fast’ approaching ‘its
end, every. ‘moment becoming more, pre-
clous, % and* ‘he asked _ the’ officials to al-
low him’ to. sing. Upon'gaining’ their
consent his;voice broke out clearly ing
to:the tune of a familiar gospel song,’
which-he" continued. to’ sing after .the
death’ cap had’ been ‘placed ‘over ‘his
eyes,and the last note of the: hymn‘had

Just: died’ away’ when’:the heavy: ‘fall

of the: trap; ended ‘all’and brought.’si-
lence: over. all’ those’ who stood within |
the: walls © of ‘the little ,room.;to:\wit-:
ness ‘the’ ‘administration. of: Justice ‘to
the: doomed man. '

Seen eh? Neck ~ Instantly: Bs as, :
“I Depaty’ Sheriff: Wiley. H. Bridges
‘justed the rope’ about the’ negro’s- neck’
and: Deputy “W.!C. Frizzle placed” the
handcuffs and‘ death cap.'’Deputy E. C,
Naftel’ sprung’ the ‘trap , ‘and the. ‘body:
of’ the-‘dead'\man -.was:'examined by
Doctors H. T.. Lay, \T. J.(Stough and
W..A: Sellers, all of: whom pronounced
him‘ dead immediately after the spring-
ing of* the ‘trap, the fall ‘breaking /his
neck ‘instantly. - The: last**heart beat
was notedjat 11:05 0 ‘clock and ten-:min-
sites later:the body was’ cut down?’ and
.placed:-in'; the ‘long: wicker ~basket,
which “had ‘been broughtiin during: the
-examination’and:in ‘which ‘it-was ‘car=:

|:ried: ‘to: ay ‘local undertaking: establish=
‘ment for: burial® preparations, ey

‘ Among” the relatives of the nardecga
“woman: present were Boss Tanks, John
; Wilicing, Sam dey ra.t and: ‘Clora Tanks,

>

REL tae 6,

it a) ue

nage
iPesgler
‘cashier;

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ABBEVILLE.

A Negro Murderor Hanged.
Montoomenry, Aia., Nov. 4.—[Spectal }
Levi Branner, colored, was Hanged at
Abbeville, Henry county, Ala, on last
Friday. The scone of the expoution is
down in the ezatero part of the state,
and the newscenme in to-night. ;

The crime for which Brunner paid

the dcath ponalty wus tle murder of
Raiford Washington May 11 laut. The
$wo mien wout lishiny together, and in

the afteinoun Levi returned Home inan
excited maoner sod stated thst he and
his companiuy had been attacked by
two armed white men, and that he only’
bad been able two escape, while Washinge
ton had been jeft in their olutphes.

Hie story. wae Dos Uelieved and a}
mearching party was oryganiy and he
went along us guide. ‘The:bodvy of
Washington cuuld not be feand, al-
though the creek bank wherad. the en-
counter iw said tw buve place
showed signs of a terrible jstrnggle
Levi was nrrested and the fallowing
day the budy of Washington was foand
lower down in the crewk with |his body
horribly wutilsted and his bh

edin. Levi was tried aud fuund gnilty
and sentended to be hang all the
while protesting bis iInnucen

It was pioved durng the thas

Brunner nad tur 2 louy timp bean om

terms of criminal intimacy
dead nian’s wife and that he
Y.otim to marry her.

"
=~

=| of

A Negro Murderer Hanged.
Monteomery, Aias.,Nov. 4.—[{Spectal }
Levi Branner, colored, was Hanged at
Abbeville, Henry county, Ala..on last
Friday. The scone of the ezsention is
down 11 the ezstero part of the state,
and the newscame in to-night. .
The crime for which Branner paid
the death penalty wus the murder of
Raiford Washington May 11 last. Tae
LwWwo men went lishing together, and im
the aftai noun Levi returned home inan
excited maouer and stated thet he aad
his companiov had been attacked by
two armed white men, and that he oaly
had been able w escape, while Washinge
ton had been jeft in their ciatphes. ‘
His story was not veliev and ®:
searching party was organiy: and he
went along as guige. ‘The body of
Washington couid not be feand, al-
though the creek bank where. the en-
counter i# said tw have taken place
showed signe of a terrible struggie.
Levi was scrested and the fallowing
day the buuy of Washington wae feand
lower down 3n the creek wita |his body
horribly wutilated and his bh crush-
edin. Levi was tried and fu
aud senteoged to be hang
while protesting lus innuce
It was pioved durng toe
Brunner nad tur a long ti been
terms of criminal intimacy [wi
dead man’s wile and thas he
¥.ctlm to marry her.


: * B2O.@"®.©.0:0:0 e108 L6,0r- wh

e + ;
wa oft,

aha Ba se

at an My.

several months,” Mrs. Burrell replied.

“When was the last time you saw
him out here?’ asked Deputy Tate.

“Well, we heard his car drive into
Uncle Jake’s driveway the night he
disappeared.” - .

“What time was that?”

“It was around nine-thirty or ten
yclock. It was after dark.”

“Did you hear any loud talk or com-
motion going on over there?” ©

“No, sir. Mr. Burns and Uncle Jake
vere both quiet kind of men. They
fished a.lot together.”

26

Sheriff Holt McDowell: He didn't
want this murder to set a precedent

Pg

“How did you know it was Burns’
car. that night? Did you see it?”
Rickles questioned.

“No, none of us saw it, but we know
the sound of its motor. It was one of
those big Franklins and sounds kind of
like an airplane.”

“Then it was his car. But that
9 yc mean that Burns was driving

“I wouldn’t know anything about
that,” Mrs. Burrell replied.

The officers picked up scraps of in-
formation from other sources.

“Uncle Jake was quite a ladies man,”
someone told them,

Was there a woman involved in this
crime? Was Prescott’s death due to
a jealousy of some sort? This did not
look like the sort of crime a woman
could commit by herself—but the offi-
cers knew from past experience that
you could never be certain about any-
thing until the facts added up.

A NEIGHBOR told Tate: “Prescott
was a pretty generous man. He
often loaned out money to his friends.”

There was another plausible motive.
Perhaps someone killed Prescott be-
cause of a debt. Could that be it? The
officers were not neglecting anything.

' Returning to Birmingham, Rickles .

and Tate headed for Burns’ home.
They found no one there at the time,
but they did discover that Burns re-
cently had been married. His wife was
a beautiful thirty-year-old girl, the
former Lola Buffington.

The officers: contacted Burns and

“questioned him.
“Yes, I knew Jake Prescott,” he said.

E. J. Burns: When his high-pow-
ered car was stolen, he reported
it immediately ‘to the — police

A little boy walking over this
bridge saw a man's body float-
ing face downward in the water

“I’ve been trying to buy a tract of
timber from him for some time.”
“Spent a lot of time out there with
him, didn’t you?” asked Deputy Tate.
“Yes, I have,” replied Burns,. “We
often fished and hunted on his place.
It’s all in business; you know.”
“Were you at his place on the night
of January 16th?’ queried Tate.
“No, I couldn’t get around during
the latter. part of January,” Burns re-
plied. ‘You see, my car was stolen. I
reported it to the city police about that
time, but they’ve never found it.”

I Deputies exchanged glances.
“When was your car stolen?” asked
Rickles.

“I don’t remember the exact date.
But it was around the’ middle of Jan-
uary. The police department should
have a record of it because I reported
it at once.”

“Then you were at home on the night
of January 16th?” .

“Yes,” Burns replied. “I remember
that evening distinctly because Mrs.
Burns was very ill that night and was
home all evening.”

“Did you offer a reward for the re-
turn of your car?” Deputy Tate asked.

“No,” Burns stated. “But I'll take
care of any one who finds it.”

On leaving Burns the Deputies head-
ed for the office of the Birmingham
News and inserted an ad requesting
information concerning the where-
abouts of a Franklin coupe, answering

' the description of Burns’ car.

The officers did not have long to wait.
The day after the appearance of the.
advertisement, they received a call
from the owner of a junk yard. He
reported that he had purchased such
‘@ car a few weeks previously from a
Charlie Odiorne. The car, when he
bought it, had been burned beyond
usefulness.

The officers looked the car over. It
had been completely demolished by
fire, but they ordered Bell the junk
man not. to remove any parts from it.
Trailing the check given in payment
for the car, they discovered that it had
been cashed at a local filling station.
At the filling station they were in-
formed that Charlie Odiorne was
known there, and they were told how to
locate him. -

A check with the Alabama State
Highway Patrol revealed that the car
on, Lee Bell’s lot had been registered
in Burns’ name, and there was no rec-
ord of a transfer of ownership.

oo told us the truth,” Rickles
said.

Odiorne was quickly located. His
hard eyes shifted nervously as the

‘officers began questioning him.

“Where did you get that Franklin

Charles Odiorne: He seemed
willing to help the police, but

anxious to shield a close friend

Police inspect the charred re-
mains of a car neighbors saw the
night Jake Prescott disappeared

coupe you sold to the junk yard?” he
was asked.

“I bought it,” Odiorne replied.

“Got a bill of sale to prove it?” asked
Tate.

“No—but I bought it just the same.”

Rickles asked: ‘“‘Who did you buy it
from?”

“A certain man. I—I don’t remem-
ber his name.” |

“Was it Burns?” Tate asked.

“Yeh—that was it! Burns!”

The officers looked the man over.
They had a feeling that he wasn’t
telling the truth. His manner was
strained. If the car had been sold to
Odiorne—there definitely would have
been a change of title.

“How did the car get burned?” Tate
asked, f

yin reflected for a moment.

“Tt caught fire under the dash-
board and burned up on me. That’s why
I sold it for junk.”

“Was anyone with you when it
caught on fire?” Rickles asked.

“A friend of mine—Stephens. George
Stephens.”

“All right, Odiorne,” Tate said.
“We're going to check up on your story.
Meanwhile we’re going to hold you for
a little more questioning.” :

“Why? What did I do?”

Tate said: “That car you were driv-
ing was reported stolen. Unless you
don’t know it, stealing cars is against
the law.”

Odiorne was soon hustled to the jail
in Jefferson County’s new courthouse.
Before locking him up, the officers had
a fey more questions they wanted to
ask.

‘““Dfd you know Jake Prescott?” Tate
asked him.

“Sure,” he said, ‘Everyone around
here knows Uncle Jake.” .

“Did you ever have any dealing with
him?”

“Dealings? What do you mean?”

“Like borrowing money?”

“No. I never borrowed money from -

Uncle Jake.’

- Rickles said: “A lot of people claim
that the Franklin car was out at Pres-
cott’s place the night he was Killed.
What do you have to say to that?”

Odiorne’s face grew pale.

“I don’t know anything about the
killing,” he said. . “You can’t prove
that I do.”

“Maybe we can and maybe we can’t,”
Rickles said, and let it go at that.

Within an hour Stephens, Odiorne’s
friend, was brought into Headquarters.
He aided the police very little, and
they held him for further question-
Ing,

Meanwhile, the Deputies
touch with. Lola Burns.

got in

“T knew Uncle Jake Prescott very
well,” she said, in answer to their
question. “I’ve known him since I was
a child.” ;

“Do you have any idea who may
have killed him?” :

“No, I don't,” she answered. ‘But
if they ever find the killer, I hope
they hang him.”

Sa noticed how she emphasized

im,

He said softly: “I hope they do, too.”

FYENTS moved rapidly during the
next weeks. Chief Deputy W. H. Ho-
gan moved in to help the other officers.
From long experience in handling

-men, Sheriff McDowell played a line to

his deputies, clearing all detail work
before them: He knew how to get re-
sults, :

The charred remains of the Franklin
coupe were checked again and frag-
ments containing suspected stains
were removed and forwarded for
analysis to Dr. C. J. Rehling, eminent
State toxicologist at Auburn Univer-
sity. The officers started a checkup

Chief Deputy Sheriff W. H. Hogan:
He was the first on the job when
the victim was reported missing

“Who did kill Prescott?” Tate aske

“Burns,” Odiorne said quickly—a:
ae officers thought he said it much t:
ast.

“All right, finish your story,” Rick!
said. ‘We’re listening.”

Odiorne then told them how he w:
a witness to the killing of Jake Pre
cott; that he had watched Burns .
the killing.

“Prescott and Burns had an arg.
ment and Burns threatened Prescc
until he signed papers giving Bur:

(Continued on Page 45)

on the weapons found in Jake’s body.
Then Tate and Rickles went to work
on Odiorne. :
“Burns is going to prosecute you and
Stephens for stealing his car,” Tate
told him.
Odiorne’s fists clenched at his side.
“Burns ain’t going to pin no rap on
“me,” he said. :
“No,” Rickles asked, suggestively.
“What are you going to do about it?”

“T’ll fix him like he’s trying to fix
me,” he said. ‘“There’s lots of things
I can tell—like who killed Prescott.”

Deputy Sheriff Troy Tate: By dili-
gent work, he turned one of the
death-weapons against the killer

Deputy Sheriff Dewey Rickles: He
came forward with a plan—and
the other officers agreed to help -


*

A Otsuesror —

was found, along with

ery kind of whip—rid- ”

y whips, switches and Kenney took the box and T= years had mage Wie wire wns oe

‘and chains were & it. toy elephant was in it, “Preddie Houseman an old man, & m fOUNG ID Lic apes ven ‘

1 a desk in this room, @ the top of the toy was a piece little thin and wan, but though he was © desk in front of Hogan. . .

many famous in New . Written on was. “To onlya grandfather by marriage, he had ‘ogan read the list of names. One

as discovered. Ye ayne from Dad.” : taken an active interest in Patricia. in particular interested him: Thomas

2g, the whips and other "jt doesn’t seem ible that a man He was. sincerely affected by the Thornton Updyke. a. ;

with the list of names, Fqould kill the mother of his child and shock of her death. “One can’t watch ‘“Find this man Updyke!” Hogan j

together to be taken to ; come back and leave this toy,” all the grandchildren and great- ordered. “Use every detective’ in the :

ey Hogan’s office. . ; tor Kenney said. , grandchildren,” he said wearily. “after city if you have to, but find him i
i: has to be pretty damned all, when one of the grandchildren find him fast.” t

to do that after murder- marries, @ little of your responsibility :
i: Who. is_ this mysterious Updyke?

net were in Hogan’s of- a like Patricia Lonergan, leaves.” Y
again. 1. Mahoney answered. Then he He cooperated whole-heartedly with Will the police be able to find him?
the police, giving tips about the friends And if they do—what strange story lies

ig Jeanne Jarburg _

tive.” she id in .pro- to Mrs. Black. “what about the

aergan had no scra Was he interested in the baby? of Patricia and her husband that en- behind his exotic parties? Who

vhen we had lunch to- : Pri like a father should be?” abled the detectives to question others implicate? Be sure to read every ex-

is > “He apparently liked the baby very and to learn where they lived. ; citing instalment! The next one will
Patricia Lonergan’s mother, Mrs. appear in the April issue of OFFICIAL

was here Saturday morn-
Lucille Burton Wolfe, who lived at the DETECTIVE STORIES, on_ sale at = See ee
rd

know. He didn’t stay long ;
exclusive Elysee Hotel, just off Park your newsstand on February 25th. No longer will your letters be dry, awkwa
. x : i ing. HOW TO WRITE LOVE

b with Mrs. Lonergan, put he went to the
and uninterest
LETTERS, shows you how the most common

things can sound interesting—will help you

ay!

a scratches on his face
ce picked him up in To-
said. “Didn't you notice

a | Ad . * Read It First In nok, contains dosens of cts
a Dead Man Down (Continued from Page 27) oFFiciAl DETECTIVE STORIES ple teers ook oe just how oF acta letters
. ‘é rom beginning to end, Included are scores of

model love letters by world-famous people—

8
cy
E
H

Deputies Tate and Rickles reported a Mrs. Burns replied. “I was in | many catchy words he
: . M 7 ay citing bi a
cDowell. He po Burns’. home. I. was: his house fone a ing int ONE YEAR'S SUPPLY. of

ergan ever. fell in love with : .
rried-him.” advances ~ thought Pr eeeket had a one ne aa ne j 3
erested in these scratches,” urns’ housekeeper, a out t m what was obvio e keeper at the time.” iti
a por One wort ‘ — flimsiness of their case- fhe Mr. Born at that night Gold Mone eres Jo" sdison a NY. 3
scra o' otter. Then Burns ; “J don’ ember,” she said. “I was .
aah tches on eed at him over the head with an ax. He nyo have some evidence against sick at the time, and I went up to bed =e NEY-BAC corres
i aurugged. Grumet said: made me drive him to Short Creek Burns,” he told them. “But the early. Mr. Burns was in the house We belier’ be belp pega ac letters Out
he had a fight with the Bridge ere he cut open Prescott’s testimony of an accomplice won’t stand when I went up to my room though.” | we want yew to be the judge! Examine the Lat fe
pldier the night before— stomach and stuck the er and upvery well in court. The charred stains The deputies were thinking: This book for 10 days at our expense—if not de- “2%
t his suit.” ax inside. After that, he sunk his body. we sent to Dr Riehling at the Univers: was tion of Burns’ story light
awe pee to ask you now,” into the water. ity have been ana as ; ee
to Jeanne Jarburg “Th: : ag didn’t you report this before?” —, can not be determined as human W°3, —_ ca ing 4 going to “ TARTIAL CONTENTS One Year's Supply of <
: ' asked him. sige oug rhaps they were work~
for helping = as much aS “J don’t know. I was scared. I was Chief Deputy Hogan also was not ing on an en ely wrong angle. Mrs. dow to make. woe nev) erence
fe Lonergan triplex on ‘ont’ . scared what Burns would do tome.” — satisfied with the way things were. Burns seemed to be sincere, enemed tO | |sen tm Sapenaped a
e Lonerem or Kenney and 7 encaid: “I'm not completely cot uutfelling them the whole story sie me Fae ee." incpudeD FREE
shoney were & over the - EvEN with this statement, the offi- tain about Odiorne’s story. I think knew—but something aD) be How
- oh am ;mportant cials weren't completely s& ed. something’s missing in it. I also want lacking. What was it? was she actually | |ow
h - ° : rian ; s were running too smoothly. to do some more talking : telling the real facts?
3 ot ae og this iron grill —, = pointing too much in one pe I think she has a lot she didn’t Pl ged ch Oaiorne? He (aris Led Lense
n. ” : , too & ani t-
zading down to the basement They wondered why Odiorme would Lola Burns was soon confronted by ened too easily into putting the blame Bom on your @
icia’s bedroom were Ste -want to implicate Burns in the crime. the Deputies. + upon Burns. Why? mo ex:
ne yet mislead Us Cap- = Perhaps. he had something against. “you married Burns about a week ‘The officers had a few other puzzling | "events
oney sald. “The that they > Bums! .Mthan he diome jhe rom how BS er ed HOE rescott's body, Gdn Lng Ee answers oF Ty was the ie
a : : ) co ; at was the ;
erately smeared on the iro = about this Stephens—Odiorne’s friend? | “Yes. I don’t know why I did it ex- connection ‘petween Burns and Odi-
ib oe oye After all, it is _ - How did he fit into the picture? cept that T was so mixed up.” Grne? Both men appeared to be on eran MA 1L COUPO N TODA
a at. How could : Burns was arrested. The authorities ‘Ts that the only re nm?” ferent levels—yet how. had they become | 4 2
as get on the iron rails un- _ knew there wasn’t much of @ case Mrs. Burns frowned. “what are you friendly? Why—if Burns was guilty | s342 \yON PUBLISHERS, Poa, Me y. : ‘.
rebody sme them there — ag him; but they had wanted to trying to imply—that I had g —would he take Odiorne in as an ac- | § Send, ook ccaner with Nrite Love, LAS prLY vot Plain
xdstained gloves? 2 e hold him anyhow. - to do with the killing?” . cpmplice? oh See for my weationery. 1 not aetna. Jee r]
he smeared those stains on the “a You've got the wrong man,” Burns “I wasn't implying anything,” Hogan And then there was Stephens. He ] af} sena co. 1 wit pay posimn gee t
tair.” Inspector: Kenney sug- = said. “I sweat I'm innocent. I swear said. . had entered the case mysteriously— |% Some few cents postace. ‘
he walked out of the door of don’t know anything about the _ Deputy Tate interrupted. “Let's get but what part would he play? ‘The 2 sr S8o—send postpaid. H
rtment and down the main: = ~ You're letting the real killer get away.” down to the night of January 16th. officers shook their heads on this one. | seit vce ae ee i
the house.” a The officials knew that he might be Do you remember what you did, and The Deputies returned to Odiorne |! ADDRESS. 53350547 1.38 with orter a
Pas Captain Mahoney said, tis ees right. 5 where you were on that night?” for further questioning. He moved 1 Sa Soe ree eeenennent
veral idea. The bl me : o
a > 45 {
es * ~ a

By no. stretch of the imagination was
a crime indicated, even though death
seemed to be. McDowell’s thought on
the matter was that the old bachelor
would be found somewhere on his place
and he at once organized a searching
party, split it and put a deputy at the head
of each group, then started looking for
the old man.

Uncle Jake’s land was largely timbered

- with second growth pine. The Warrior

River wound snake-like through the place
and smaller streams emptied into it. The
soil was lush and through a maze of
underbrush the searchers combed. They
searched the mud-yellow river banks for
signs indicating that someone had slipped
and fallen and they called the old man’s

DETECTIVE

pam s

Attractive Lola Buffington Burns is shown on the witness stand being questioned by

pedeecens a Oe aa

ep Renee RSET
o icgtes Soe E

Assistant Solicitor Burgin Hawkins. Her testimony effectually shattered the alibi of
. the slayer, Kindly Jake Prescott, the victim, is shown at left.

name time and again ks the search went
on.

There was no reply to their calls and
no signs of Uncle Jake Prescott—dead or
alive.

Back at the house McDowell called
friends and neighbors of the missing man
about him and said, “Something unques-
tionably has happened to Prescott. What
it is, I don’t know. It looks a little
rough and I’m going to stay in here and
see just how rough it is—if I can.

“IT want you people to tell me every-
thing you can about Prescott: his habits,
his plans, who his closest friends are and
about his relatives. Was he well-to-do
or is all this stuff mortgaged? Tell me
everything.”

Half a dozen people started talking at
once. When the various stories were put
together he knew that Prescott was worth
at least a hundred thousand dollars, had
a brother who would in all probability
inherit Uncle Jake’s wealth if the old
man were dead. There was no other
relative; but Uncle Jake Prescott had a
lot of friends—most of them young
women,

At this information, McDowell raised
his eyebrows. “Young women?” he
questioned,

“It’s not what it sounds like,” his in-
formant said. “Uncle Jake helped bring

up quite a few young folks—sent ’em to
school and things like that. When they
grew up, they were his friends and hung
around him some. Nothing wrong about
it, Sheriff,”

McDowell considered this information
and he could see danger there—danger to
Uncle Jake Prescott. True, he wasn’t
sure anything had happened to the old
man but in the girl angle he could see
motive.

Perhaps some girl Prescott had helped
out had grown up, got herself a sweet-
heart who failed to see the situation as it

“was: a.grateful young woman, visiting

with her elderly benefactor. Murder had
been known to develop from less.

But if Uncle Jake had been killed,
where ‘had the killing taken place and

- where was his body? °

McDowell said, “When I first came
out here, you people spoke of some mys-
terious happenings last night. What were
they and why do you call them mysteri-
ous ?”
It developed that some had heard Uncle
Jake’s dog barking excitedly. A near
neighbor had heard a sound not unlike
the dropping of an armful of wood or the
slamming of a car door—one that closed
with difficulty; and an old car had
wheezed down the lane leading to

[Continued on page 52]

27

if
i


capac
SET Sears

q

<e

if ROM Uncle Jake Prescott’s barn-
Pex came the sounds of animals in
distress. Hungry chickens scratched
at barren earth; cows lowed in painful
protest; a horse nickered, calling for
‘ : hunian attention.
ti These sounds had continued through-
fi out the day of Jan. 16, 1943, More than
| one neighbor had looked with concern
toward the old man’s home and there had
. been a great many low-voiced discus-
sions.
i Uncle Jake lived alone in the western
tt part of Jefferson County, Ala., and as is
} customary in rural communities, people
i had for years speculated on his eventual,
Bi! lonely end. The 69-year-old bachelor
} would be found dead one day, they said,
Hh and now there were those who thought
that day had come. Because of certain
Bi mysterious happenings the night before,
if however, they were hesitant about in-
vestigating. Then someone called the
sheriff in Birmingham.
The caller must have made the situa-
tion sound bad, for Sheriff Holt Mc-
Dowell brought Chief Deputy Wilton
Hogan and Deputies Troy Tate, D
Rickles and J. L. Boggan with him.
The sheriff, climbed from the car in
front of Uncle Jake’s house and cast a
sweeping glance over the people who
were gathered there. ‘Where's the
body ?” he asked.
“T reckon it’s in the house,” a tall,
gaunt man said. ‘“Leastwise that’s where
it ought. to be.”

Charle:

26

“You mean you people don’t know if
he’s dead?”

A heavy silence greeted this question,
a silence that answered it better than
words. McDowell, with some asperity,
said to Hogan, “Well, we're here, so we

‘might as well find out what brought us

here.”

He started for Uncle Jake’s house and
the gaunt man called after him, “Take a
look at them chickens and the livestock.
A body don’t have to be smart to know
something’s sure plenty wrong.”

“But why didn’t you look and find out
what was wrong before you called us
away out here?” McDowell wanted to
know.

“Nobody around here wants any
trouble messing around with things that
don’t concern him,” the man said. “We
know better’n
know Uncle Jake's dead as a last year’s
bird nest. We've done a heap of talking,
then we did*what seemed the right thing
to do. We ain’t the law.”

McDowell shrugged. Then, trailed by
his deputies, he. entered the house. There
were only three rooms and in less than
three minutes he knew Uncle Jake Pres-
cott was in none of them—nor had been
for some time.

The house was dank and cold but it
was in order except for the bedroom.
Bed clothing was scattered about the floor
ina manner indicating that a sleeper, sud-
denly awakened, had flung them quickly
from him as he leaped from the bed.

Sheriff Holt McDowell (above, right) directed the hunt for the bespectacled slayer,
right. Key figures in the case (left to right, below) were Deputy Dewey
s Odiorné, star witness; Deputy Troy Tate and Chief Deputy Wilson Hogan.

Rickles,

that just the same’s We .

TRAPPING ALABAMA’S JUDAS

“Or he could have been dragged from ,

the bed,” Sheriff McDowell thought
aloud, Mentally he added, “But why?”
He didn’t know but he knew something
was wrong. |
McDowell, though a city man from
Birmingham, nevertheless was ac-
quainted with farming and livestock. Ob-
viously the livestock
unattended for a considerable time. A
brief investigation convinced him of this.
The udders of the cows were swollen

with milk and the animals were 1n pain.
The horses’ mangers were picked clean,
even of coarse stems of hay. The dog
appeared to be half starved.

But if something had happened here to
Uncle Jake, why hadn't the dog inter-
fered? And if Uncle Jake Prescott had
simply walked. away, perhaps to drop dead
ona distant part of his vast holdings, why
hadn't the dog followed him and then, as
the faithful animals do, remained by his

side?

STARTLING

here had been .


BURNS, El¥ert J,, white, electrocuted A

Lola Buffington, beautiful, innocent witness.

VITAL DETECTIVE’ CASES,. November, 19))j (Volume

NCLE JAKE PRESCOTT,
wealthy land owner and
farmer, was last seen on the

porch of his home in the western
edge of Jefferson County, Alabama
on the Saturday afternoon of Jan-
uary 16, 1943. Of that, his near-
est neighbors were certain as they
talked aboat it in front of the
Prescott place the following. day.
_ Sheriff Holt McDowell, who had
been summoned from Birmingham
to investigate _Prescott’s absence,
was more than a little puzzled
over their alarm. The elderly
bachelor had been missing less than
twenty-four hours.

“He might have gone to visit
a relative or a friend,” the portly
sheriff suggested to the grim-
faced farmers and their wives.

Mrs. Mamie Harbin had an an-
swer for him. “It isn’t like Jake
to go off without telling somebody
to feed his stock. You can see for
yourself that they haven’t had
anything to eat today.” Ki

McDowell nodded understand-
‘ingly. He knew by the way the

were, hungry. He knew also what

%

cattle were bawling that they.

ents
labama (Jefferson) on March 1}, 1964

BY E. COOPER MACKEY

that expectant look in the eyes of -
a hundred or so chickens meant.
Perhaps, Prescott had told some
neighbor to feed the stock and he
had forgotten. He said, “sHave you
gotten ‘in touch with any of Pres-
cott’s relatives?”

“We called his brother, Sam, on the
phone,” Mrs. Harbin said. “Sam said
he hadn’t seen Jake in quite a spell.”

Deputy Dewey Rickles who with Dep-
uty roy Tate had accompanied the
sheriff to the scene, nudged McDowell’s
arm. “Maybe we’d better look around
inside the house. The old man may have
left a note or something.”

McDowell agreed. Ha beckoned to
Tate. “Keep in touch with this crowd,
Troy. These people are quite upset over
the hungry cows and chickens. It could
be that their premonition of something
wrong is correct.”

While Tate continued talking “with
Prescott’s neighbors, McDowell and
Rickles went inside Prescott’s home. Al-
though the. sunshine was brilliant that
day, the forest of tall virgin pines which
all but swallowed up the house cast
eerie, gloomy shadows through the de-
serted rooms, ‘

As the pair stopped at the threshold
of the bedroom Rickles whistled sharp-°
ly. “Looks like a fight went on in here.”

The sheriff nodded. His quick eyes
took in the wild disorder of the room.
Bed covers were strewn abott the floor,
chairs were overturned and dresser
drawers had been pulled out, their con-
tents scattered. No wonder the neigh-
bors were alarmed.

Wordlessly, McDowell and. Rickles
stepped into the room, began digging
around in the clutter for some sign
of Prescott’s whereabouts. .

Presently, McDowell said, “There’s
been a woman here recently and she left
this behind.” He handed Rickles a tiny
square of linen, obviously a handker-
chief. It was smeared with lipstick.

ria ;
+ > , x
3% Fay! his. 3
’ > » A - ? 3 , ? Yr

E. J. Burns was a real estate promoter.

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Trapping Alabama’s Judas Slayer

[Continued from page 27] «

Prescott’s place. This had been just after
10 o'clock.

“Tt was a rattle-trap,” the informant
said. “Muffler had a hole in it and it made
a lot of noise. It wasn’t hitting on more
than three cylinders, sounded like.”

“Have you ever heard that car around
here before, do you think?”

“Sure, a lot of times.”

“Ever see it?”

“No, it was always night.”

Several péople claimed to have heard
the car but none of them had seen it
or had any ideas ‘about who it belonged
to. Summed up, there seemed little
enough to the “mysterious happenings,”
excepting for the fact that Uncle Jake
Prescott was gone. This added impor-
tance to the barking dog and the old car
and it indicated that Prescott had left in
that car. Had he gone of his own accord
or had he been forced to leave? Because
he had not returned, it seemed safe
enough to assume that he had not left
willingly.

Thoughtfully McDowell returned to
the bedroom of the Prescott home. He
looked about at the scattered-bed clothes
and wondered if there had been a
struggle here. It didn’t look like it be-
cause nothing else, was disturbed.

He opened dresser drawers and ex-
amined the contents with little in mind.
He found a number of snapshots of a
heavy-set, elderly man whom he took to
be Prescott. In two or three of the pic-
tures was a pretty young woman, He
found a lip-stick smeared handkerchief,
a dainty one.

He rejoined the neighbors and showed
them the pictures. They were of Pres-
cott. The girl, they. said, was Lola Buff-
ington, one of the several whom
Prescott had helped. She now lived in
Birmingham.

This information was, of course, of

;
4
=
&
ee
a

little value to him beyond the fact that
he and his deputies now knew what the
man they were searching for looked like,
But they’d have to find him before they
could identify him—pictures or no
pictures,

There yet had to be found a motive
for the old man’s disappearance and Mc-
Dowell couldn’t see one. On a hunch he
said, “Did Prescott have anything here
that somebody else might want? I mean,
when an old person lives alone, there’s
usually a rumor about that he’s a miser—
has hidden wealth around, Was there any
such rumor about Prescott?”

A resident of near-by Flat Creek
stepped forward. “There was such a
rumor,” he said. “People said old Uncle
Jake kept a pot of gold in his house.”

The man hesitated, then continued, “It
was more than a rumor. Matter of fact,
I saw the gold.” P

“A pot of gold, eh?”

“Not exactly. It was a half-gallon
syrup bucket that Uncle Jake kept full of
ten and twenty dollar gold pieces.”

“You mean he didn’t turn the gold in
when the governmental order came?”
McDowell asked.

“T don’t know about that. Maybe he
did. I saw the gold move than ten years
ago—closer to fifteen. I’d heard about it
and one day I mentioned it to Uncle Jake,
sort of joking. He said it was true he had
some gold and he showed it to me, I
asked him if he wasn’t scared to have it
around and he said what was there to be
scared of. No one would bother him, he
said; but I reckon he was wrong about
that.” :

McDowell considered, If anyone had
come for the gold after all these years
the house would surely have been torn
up unless Prescott had at once revealed
the hiding place. In that event he likely
would have been left unmolested.

Attempting to shield his face from the cameraman, the elderly killer is shown
"en route to court with (right) Deputy Troy Tate,


satisfy yourself I had nothing to do
with it.

Assigning deputies to keep the sales-
man under secret surveilance, Nixon ac-
companied the two state sleuths to Tra-
verse City.

There, with the aid of Sheriff Camp-
bell and B. P. Burns, superintendant of
the State Hospital, they found ready
confirmation for their mounting sus-
picions. ;

IRST questioning hospital author-

ities themselves, they learned: that
no hint whatever had been left by the
vanished young woman concerning her
sudden departure. She had made no
provision for delivery of the pay check
which was due her within a few days.
Madison himself had accepted the check
for her, saying he would forward it to
her at her home in’ Minnesota.

Intimates of the slain nurse recalled
wondering particularly at her failure to
return within a few days because on
visiting her room they had found no

evidence’ of a prepared departure. They -

had found no indication of missing cloth-
ing. other than that which she wore,
and luggage and travelling effects were
in their accustomed places in her room.

“What was the status of their-married
life?” Nixon inquired of one young
woman.

She hesitated, uncertainly, for a mo-
ment. “I don’t like to repeat gossip,”
she said slowly at last, “but it was ru-
mored that’ Ruth suspected him of go-
ing around with other girls. They quar-
reled a lot and I’ve heard that Al made
some terrible remarks about her.”

Sle named a former inmate of Mad-
ison’s, a member of the hospital staff,
as one of those to whom the bereaved
husband had: spcken freely of his do-
mestic strife.

“Sure,” the man admitted promptly.
“He told me a lot of things about her—
and I can take you to. others he told,
too. He. said he’d just as soon spend
ten years in prison as go on living with
her. Another time he said he was going
to buy her a one-way ticket and all
the clothes she’d ne&d the rest of her
life and send her avay to be sure she’d
never come back!”

“What do yor know about his affairs

“There’s no doubt but that it was
Burns’ car that was seen and heard in
Prescott’s lane that night. According to
our city records, the car was stolen be-
fore that time. Hf it was used in the
murder, the slayer either sold it or dis-
posed of it in some way. Especially if
it had any blood on it. Check the junk
dealers. He may have pulled the car
apart and sold it piece by piece. Even
so, parts of a 1930 Franklin ought not
to be hard to trace.” °

Accompanied by several deputies, Mc-
Dowell returned to the vicinity of Pres-
cott’s home and questioned the neigh-
bors again. For a time it looked as if his
efforts were in vain. Then one of the
neighbors said, “Have you heard about
Al Woods .moving away?”

McDowell's interest revived. “No,
what about it?”

*“Al sure got away from here in a
hurry right after Jake disappeared,” the
man related. “Looked like he was run-
ning away from something.”

“Where does he live now?” asked the
sheriff

with other women?”
“He had plenty, I guess, and from
what I hear he wanted to marry them

- all. He admitted to me once that he

had another’ wife when he married
Ruth!”

The witness added that he personally
had accepted Madison’s invitation to
go on several dates early in June with
two sisters living on a farm near Tra-
verse City. “I remember distinctly,”
he continued, “that he told. that girl
that he was single and spoke to her
about marriage.”

Others were readily found who admit-
ted hearing Madiscn’s. remarks about
“getting rid” of his wife. After her
disappearance he had explained her ab-
sence to them in various ways. Some he
led to believe she had gone to her home
for a visit, while to others he openly
admitted she had left him and would
“never come. back.” :

Groupes of sub-normal mental pa-
tients whom Madison had taken for rides
in his car told of sitting unattended
for hours in the machine awaiting
Madison’s return after he had parked
and walked across the fields to visit a
farmer’s daughter. On other occasions he

had seated the girl beside him in the -

crowded car and brazenly carressed her
before the patients’ staring eyes!

Reluctantty, the nineteen - year - old
farm girl who had been named by
Madison’s erstwhile friend admitted a
romantic relationship of several months
duration with -the peiandering young
husband.

“But I didn’t knew he was married,”
she pleaded. “He told me he had been
married, but he gave me the impression
they were divorced. He wanted me to
marry him. Then one night late- in
July he came to see me rather late and
he showed me a divorce paper.

“He said, ‘Now I’m free. I just got
my final divorce and we canbe mar-
ried. Ahir

That night, she recalled positively,

. had been, July 24. The night of Ruth -

Madison’s disappearance! The night

which Madison had declared he spent -

dining and. entertaining his wife in an
effort to stem their growing matrimonial
strife!

Under persistent interrogation, she

The man told him. Then McDowell
asked, “Ever see this Mr. Gray every-
body’s been talking about?” ~
’ “Do you mean that hard-faced fellow
that went over there once or twice?” he
asked.

“Could be the same one,” McDowell
conceded. “What did this man look
like?” ;

“He was heavy-set, had lots of deep
lines in his face,” the farmer related.
“His eyes looked hard, like he’d been
connected with crime or criminals.”

McDowell carefully jotted down the
description. He felt certain, now, that
this man and the mysterious “Mr. Gray”
were one and the same person. But find-
ing this elusive person was something
else again.

McDowel] drove to the home of Al
Woods, confronted him with his former
neighbor's statement. The man quickly
explained his reasons for moving and in
addition produced an ironclad alibi for
the night of January 16.

The sheriff next investigated a num-
ber of Prescott’s former women friends.

admitted tearfully that she’ had spent

most of the latter part of that fateful
evening with Madison, including the
very hours he supposedly had sat) with
his wife in a theater and later left her
at. her dormitory at eleven o'clock!

Sometime during the preceeding two
cr three hours, the officers calculated,
Ruth Madison had met’a cruel, awful
fate at the hands of a designing, heart-
less fiend, .

ARRIS and Chidester turned swift-

ly to the home of Madison’s
parents, while the two sheriffs and Supt.
Burns continued questioning new wit-
nesses at the hospital. Protesting biter-
ly,. the faithless young husband was
taken into custody and his car was
seized.

An examination of the machine's in-
terior yielded no visible clues. But in
the tool compartment the sleuths found
a hammer, smeared with a long-dried,
darkish stain. It was quickly dispatched
to a chemist for examination. :

Faced with the revelation of his many
inconsistencies and the proofs of his
romantic attentions:to girls and wom-
en, he continued an air of injured in-
nocence. Not until hours later, when
the hammer, bearing the stains which
a chemist had quickly identified as blood
of human origin, was held before him
did his bold fortitude relax.

Sinking back into a chair with a
drawn sigh of resignation, he muttered,
“IT guess there’s no use pretending any-
more. But it was her life or mine. We
had a scrap about money and she‘d have
killed me if I hidn’t hit her first!”

‘His wife had left the hospital with
him at six o'clock on the fateful evening,
he declared, to take a ride along the
river road. ;

“We quarrelled,” he said, “about the
money we had saved and. which she was
keeping. She wanted to use it for a

- trip home, although we. had saved it

especially to pay some bills we owed.
She called me some names I didn’t like
and slapped me. I'd turned back toward
Traverse to take her to her room when
we had a flat tire near that bridge.
I got out to fix it and she kept nag-
ging me. and she slapped me _ again.
Then I guess I slapped her once and

He + soon found one woman who had

served as the bachelor’s housekeeper
and had been discharged following a
quarrel. McDowell located the woman,
questioned her, checked her alibi. She
was immediately cleared.

Since. it could not be proven whether
any cash had been taken from Prescott’s
home, the robbery motive was neither
established nor discarded entirely.

1 Wpeviie aes next considered the an-
_gle of financial gain. He soon
learned that Prescott had left every-
thing to his brother, Sam. This seemed
to eliminate the angle of financial gain
unless seme man or woman other. than
Sam Prescott had expected to be named
in the will.

He questioned everyone who had even

" remotely known Jake Prescott, finally

finding one man who said, “There were
some who expected Uncle Jake to leave
a lot of his stuff to his friends.”

The sheriff started. “What makes you
think that?” he asked.

At first, the witness hedged. He seem-

she flew into an awful rage. She grabbed

a tire iron and I picked up the hammer

to protect myself. I hit her once on
the head and she sort of fell back and.
I hit her again.

“T don’t know how many times I hit
her, but I remember she was all blood
and she moaned something about ‘Oh,
Al!’ I was scared somebody would come
along, so I picked her up and carried
a over to the bridge and dropped

ee

LTHOUGH no trace of Ruth Madi-

son’s savings was found in a search
of locat banks and her personal effects, ~
Madison declared staunchly that he had_
not taken it from her body before drop-
ping her into the river, that he had
never known where she kept it. Like-
wise he continued to deny that he had
kept a date with the farm girl later on
the evening of his crime, and that the
killing had been in any way premeditat-
ed. ;

But evidence to the contrary contin-
ued to grow. In the days that followed,
Sheriff Nixon and his aides became thor-
cughly cenvinced that. the heartless
Lothario in their custody was actually
one of the most cold-blooded, deliberate
killers in the history of Michigan crime.
He had wanted to be rid of his wife
for months before the night of her de-
mise!

Among other things they learned was
that Alfred Madison—an adopted son
of. the kindly couple who were to him
‘as his parents—actually had been al-
ready married and a father at the time
he had wed the ill-starred Ruth .several
years before. There were rumors of still
another ‘bigamcus union which were
never confirmed.

Still pleading _self- defenas Madison
faced a jury of his solemn peers at the
November term of the Wexford County
Circuit Court. On Nov. 10 he was found
guilty of murder in the first degree.

Judge Fred S. Lamb pronounced sen-
tence of 99 years to life in the State
Penitentiary at Jackson, where Madi-
son remains in servitude as this is writ-
ten. =
NOTE: The name Robert Zidder used
in this story is fictitious for the protec-
tion of an innocent person.

ed sea to deculge any - definite infor-

mation, But when assured that he would >
be amply protected, he said, “A man

who knew him was talking to another ~
man about cutting some timber off of
Prescott’s land for an Alabama com-. <5
pany. He intimated that they. would ~
come into the property at Prescott’s ~»
death and that he would have charge

of it.” a

Reluctantly, the witness told Sheriff
McDowell the boy-friend’s name. It was
William Rowlett. McDowell lost no time ©
in contacting Rowlett who lived in Bir-
mingham and confronting him with his
statement.

Rowlett denied making the statement
with which he was credited. “I don’t
know what the man is talking about,”
he said. “Evidently, he’s trying to throw
suspicion of murder on me.’ Aram

‘“McDowell’s face was grave. “Its
matter of his word against yours,” :
said. “So you’d better give me a mighty ~
good alibi for the night of January 16.”7

Rowlett quickly gave the» sheriff


JAKE PRESCOTT WAS SUPPOSED To “HAVE.
A HALF- GALLON BUCKET LOADED TO THE
BRIM WITH . ‘GOLD PIECES. WAS IT bas

““Tsn’t Prescott a bachelor?” asked
Rickles.

“He is, and a very rich one,” Mc-
’ Dowell replied, but even as he spoke
his tone changed. “Talk about wémen,”
he continued, “here are scads of pic-
tures of women—young, middle-aged
and elderly.”

Rickles glanced through the stack of
photographs and snapshots which the
sheriff had laid out on the floor. He
noted that the same man—a_heavy-
jowled, beetle-browed individual—was in
quite a few pictures with various women
and girls. :

McDowell said, “See if you can find
out who these people are.”

Rickles left the room, returned a few
moments later. “The man in these pic-
tures is Prescott himself,” he reported.
Then he pointed. to the photograph on
top of the sheaf. “The girl with him
in this picture is Lola Buffington. That’s
all the néighbors know about her ex-
cept she’s been seen here.”

are pet
Bear Hees SS

The killer's car travelled -this lane.

Pa

“Find out more about her and get
a line on the rest of them,” McDowell
said. “But first, let’s see if Tate has
had any luck.”

McDowell and Rickles joined Dep-

"uty Tate outside. He was talking to

Mrs. Harbin. The woman was saying,
“They weren’t ordinary noises, Mr.
Tate, or I wouldn’t have noticed them.”

Tate turned to the sheriff. “Mrs. Har-
bin says she heard odd bumping noises
over here late last night.”

HE woman nodded. “I didn’t think

much about it last night,” she de-
clared. “But when one. of the neighbors
said Jake had disappeared I thought
maybe the noises were made during a
fight.”

The sheriff said to Tate, “Prescott’s
bedroom bears out Mrs. Harbin’s in-
formation. Sure looks as if a tough bat-
tle went on in there.” He turned to
the woman. “Did you hear or see any
thing else?”

“I heard Jake’s dog barking after I
heard the bumping noises. Lottie Bur-
rell said she heard the same thing I did.”

Mrs. Harbin jerked her thumb at a
young woman standing nearby. The
young woman nodded in agreement.

“What time was this?” the sheriff
asked Mrs. Harbin.

“Must have been around
o'clock,” she replied. “It’s awfully quiet
out this way and the noise woke me up.”

“When did you last see Jake Pres-
cott?” McDowell persisted.

The woman deliberated a moment.
“I met him at the mail box yesterday,”

: she - said.

“Did he say or do anything that
might give us a lead on what happened
to him?” ;

The woman stared hard at an imagin-
ary object in the distance. “He acted
a little funny when he read a letter he
got out of his -box.”

“You didn’t see what was in the
letter?”

“No, I didn’t,” she declared. “But I
did notice a self-addressed stamped en-
velope with the letter. Somehow, since
Jake’s disappeared, it’s got me to think-
ing about some rumors that are going
around—”

“What rumors?”
quickly.

“Some folks are saying,” the woman
replied slowly, “that Uncle Jake has
been talking about a dangerous man
visiting him lately.”

“What man?”

“T can’t say. All I know is that folks
say Uncle Jake’s been afraid for his
life a long time, and then lately he’d
been mentioning that dangerous man.’

asked the. sheriff

eleven ©

. The water trough was dry and the stock unfed. |

“And you don’t know why Prescott
was afraid?”

“No. Everybody liked Uncle Jake. He
was so good. I can’t figure it out.”

McDowell questioned others in the
crowd but learned nothing more. The
spectators were convinced that Prescott
had met with foul play but could giv®
no definite reasons for thinking so.

Rickles said, “If Prescott’s been mur-
dered, his body is more than likely in the
Warrior River.”

The sheriff gazed out over the broad
expanse of the pine-shadowed, limpid
stream which fronted Prescott’s prop-
erty. “Probably,” he conceded. “But the
woods and the wells in this vicinity
make just as good hiding places.”

Immediately, the sheriff and his dep-
uties organized a searching party. With-
in an hour, scores of men were combing
the pine forest, scouring the lonely
roads, looking inte wide-mouthed wells
and making plans for dragging the War-
rior River.

While the search was in progress, Mc-
Dowell, Rickles and Tate split up the
neighborhood between them and began
a house to house canvass in search of
additional information. :

McDowell had covered more than
a dozen houses but learned nothing more
than Mrs. Harbin and Lottie Burrell
had told him. When he was going to
give it up, he found a man who said he
had heard a car passing his house the
night before.

“The car had to be going to Jake’s
place because that is the end of - the
“line,” the man said.

“You don’t know who the car be-
longed to?”

The man shook his head. “I guess I

Eat ae Pe his ya B Ee

~ INHIS ROOM WERE PHOTOS OF BEAUTIFUL WOMEN =


‘Left to right, Griffin, Burns and Dep. Rickles.

wouldn’t have remembered it at all if it
hadn’t been for the peculiar sound the
motor made.”*

“What do you mean?”

“Why; it sounded like an‘ airplane.
And the car rattled so I thought it
would fall to pieces.”

“Ever hear that same car pass here
before?” inquired the sheriff,

“Yes,.and always late at night. I
noticed it because the plagued thing al-
ways woke me up.”

HE residents at the next house also

admitted hearing the noise-making
car. McDowell asked, “Who was the
dangerous man Prescott’s been talking
about?”

The long, lean farmer considered
thoughtfully as he shifted a lump of
tobacco in his cheek. “Jake must have
meant that Mr. Gray that’s been going
there lately.”

“Do you know Mr. Gray? Ever see
him?”

The man shook his head. “Jake men-
tioned him, that’s all, said something
about a real estate deal. Jake owns
about one thousand acres of virgin. pine.
I’ve heard he’s been offered as high as
$40,000 for it, but that he turned it
down.”

‘McDowell straightened to attention
in his cane-bottomed chair.

“Does Prescott, own anything else be-
side the timber lind?” he asked.

“Yes. He has a large farm in Okla-
homa and lots of farm land in Alabama,
besides cattle. and livestock. He must
be worth at least $100,000.”

McDowell digested this information
thoughtfully. “And Prescott never mar-
ried,” he remarked.

“Nope, he never did. He was inter-
ested in a lot of girls and women though
—in a fatherly way.”

Suddenly, a picture of Prescott’s up-
set bedroom flashed through the sheriff’s
mind. “Did Prescott ever keep any large
sums of money at the house?”

. The man was silent a moment, then
rocked forward in his chair. “Come to
think of it, I did hear something about

a pot of gold Uncle Jake once had.”

McDowell leaned forward, new in-
terest on his face. “A pot of gold?”
he queried. “You mean he kept gold
right here in the house?” .

“That’s what S. J. Myrick said. He
lives at Flat Creek now. He told me
Uncle Jake came running over to his
house one morning with a_half-gallon
bucket filled- to the brim with gold
pieces. Jake told Myrick he had dug
the gold pieces up from under his porch
the night before because he was afraid
his house would burn down. And sure
enough, the house burned that very
day.”

The sheriff scribbled rapidly on the
back of an envelope. He resolved to
speak with Myrick. Before doing that,
however, he drove back to Prescott’s
place. This time he looked in every
conceivable hiding place in both house
and out-buildings. But he found: noth-
ing. If there had been gold or other
valuables on the place there was nothing
there now.

Had Jake Prescott been murdered?
For the pot of gold? Or-was his disap-
pearance somehow. linked up with his
vast estate or the women whose pictures
he so obviously treasured? oo,

An hour later, McDowell met Rickles
and Tate at an appointed spot. The three
men compared notes. When McDowell
mentioned the car with the peculiar
sounding motor, Rickles said, “Evelyn
Pridmore says she saw a car Saturday
night which sounded like that.”

“Did she say who the car belonged
to?” asked the sheriff.

“No, she didn’t,” Rickles replied. “But
she said one of the two girls who was
with her remarked, ‘There goes old
Burns over to see Uncle Jake’.”

Deputy Tate took up the story. “I
found out the girl who was with Miss
Pridmore. She said a man by the name
of Burns had been driving that car
out to Prescott’s often lately.”

“Then she didn’t actually .see who
was in the car?” asked the sheriff.

“No. She figured it was Burns be-
cause it was his car.”

d
t
{
J shea3
home last Saturday night,” he said.
“What about it?”

“It could have been my car turning

‘in at Jake’s,” Burns admitted. “You see,

my car was stolen Saturday afternoon:
I reported it to the Birmingham police.”
' The shetiff immediately contacted the
city police department, learned from
City Detective D. H. McKinney that
Burns was telling the truth. He had |
reported the theft of his car on Sat- |
urday afternoon—hours before the ma- |
chine was seen and heard in Prescott’s _
lane. oe
But who had stolen Burns’ car? Was

. there any connection: between the auto

thief and Prescott’s disappearance?
As McDowell puzzled over these ques-
tions, Deputy Rickles reported that the
‘Lola Buffington’ of the snapshot was a
thirty year old Birmingham beauty.
“She’s been married before,” Rickles
continued. “But old man Prescott has
been like a father to her ever since
she was a kid.” i
The deputy paused significantly, as
if he had still more to reveal. The sher-
iff “waited expectantly. Finally, Rickles

- said, “But here’s a curious situation,

A hand axe wae found in the victim's abdomen.

LB gored the days that followed Mc-
Dowell and his deputies began run-
ning down the clues gathered from Pres-
cott’s neighbors. S. J. Myrick corrob-
orated the story about the pot of gold.
McDowell then learned that the man
who had been called “Burns” was E,
J. Burns, former real estate promoter of
Birmingham. :
McDowell located Burns, a tall, kind-
ly-faced man of sixty-two, and question-
ed him at length. Burns admitted know-
ing Prescott. He was shocked when
McDowell informed him that the elderly
bachelor had disappeared. He also read-
ily admitted that he owned a 1930
Franklin coupe. “It sounded like a trac-
tor or worse,” Burns laughed.
‘McDowell smiled dryly. “Several wit-
nesses say they saw and heard your
car go down the lane to Prescott’s

Sheriff. Lola’s maiden name was Gray!”

Was Lola related to the mysterious -
Mr. Gray? Was he the ‘dangerous man’
of whom Jake Prescott had been afraid?

McDowell asked for Lola Buffington
to be invited over for some questions.
Then he contacted Sam Prescott, Jake’s
younger brother. The man was _thor-
oughly. puzzled by his~brother’s disap-
pearance; he could throw no light on
the mystery. “As far as I know Jake
didn’t have an enemy in the world,”
Prescott said.

By this time, the sheriff had succeeded
in seeing Lola Buffington. She sobbed

: convulsively as she discussed the mys-

terious disappearance of her benefactor
but declared she knew nothing of his
whereabouts. When questioned about the
identity of ‘Mr. Gray’ she declared she

-had a brother but that he lived several

¢


‘hundred miles away in Tennessee and’

had not been around for a long time.

For nearly a month the organized
search for Jacob Prescott went on. But
no sign of the bachelor or his remains
was found. ne a

It was after three in .the afternoon
on the Thursday of February 11, 1943,
that McDowell received the first en-
couraging news. An excited voice tele-
phoned him, “There’s a body in the
Wofford Oil Creek under a railroad
trestle near Port Birmingham.” °

McDowell swung into action, notified
Coroner Gip Evans and assigned identi-
fication expert John McFarland and a
group of deputies to accompany Evans
to Port Birmingham.

It was nearly dark when the coroner
and his party reached the spot. A large
crowd had congregated on the creek’s
banks. Evans superintended the remov-
al of the body from the sluggish waters
of the stream, examined it briefly, noted

‘that the throat had been cut from ear
.to ear, There was no doubt that this
was a case of murder.

He turned to the crowd. “Can any-

body here identify this corpse?”
-%: Two men stepped out of the crowd,
introduced themselves as Dr. J. B. Vines
and Manley Vines, both prominent Jef-
ferson County citizens. Dr. Vines bent
low over the bloated face for a few
seconds, then straightened. “It’s Jake
Prescott,” he announced. “I’d recognize
his face under any condition. I’ve known

A sledge hammer also found in victim's body.

him for years.” Manley Vines nodded
in agreement.

“FTER an ambulance had whisked
the body away to Hillman Hospital
for an autopsy, Evans searched the creek
banks thoroughly for clues..He found
none, however. He talked briefly with
two boys who had found the body.
Then he drove back to Birmingham, re-
ported. his findings to Sheriff McDowell.
A few hours later, McDowell contaced
Dr. J. C. Cunningham who had been
assigned ‘to perform the autopsy.

“You can see for yourself that his
throat is cut,” the physician stated.
“And there are several bruises and cuts
on the head, obviously caused by a
heavy, sharp object.”

As the physician’ paused to clear his
throat McDowell asked, * “Anything
else?” .

“Yes.” the doctor replied. “I found.

the murder weapons inside the body.”
- Cunningham spoke the words casu-
ally but they had the effect of an ex-
ploding bomb on the sheriff. “I’m afraid
I don’t understand,” he said.

The doctor went out of the room, re-
turned in a few moments with a sledge
hammer and a small hand axe, handed
them to McDowell. “These were inside
the abdomen,” he explained. “It had
been cut wide open. The gap was closed
with strips of overall material wound
around the body.”

“No doubt the killer hoped to weight

‘the body down with the weapons as well

as get rid of them,” McDowell com-
mented. “Well, his plan back-fired, most
conveniently for us.” He paused, then
added, “How long has he been dead?”

The physician considered. “It’s my
guess he was murdered the same night
he disappeared.”

McDowell hurried back to headquar-
ters with the weapons, handed them over
to identification expert John McFarland.
“Have your men make a stab at trac-
ing these things back to where they were
bought.”

McFarland eyed the gruesome objects
soberly. “They’re very commonplace
items. But it won’t hurt to try.” :

When the expert had left his office,
McDowell called in his entire force of
detectives and deputies. He reviewed
the facts briefly, then assigned a detail
of men to the car angle.

(Continued on page 54)

Asst. Solicitor Hawkins questioning Mrs. Buffington.

an gettin neh me tater ett


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Jehit
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on the night Uncle Jake Prescott was

presumably hauled off in the rickety old
Franklin coupe to his grave in the creek.

Hours later, McDowell was forced to
admit that Rowlett’s alibi was solid.

But that particular angle still impress-
ed McDowell. Perhaps there had been
others who knew who would benefit by
-Prescott’s death. -

He assigned several deputies to make
a thorough check on the comings and
goings of the better known friends. He
wanted to know all that had happened
to them since the night of the murder.

The first thing McDowell learned was
that a telegram had been sent to Lola
Buffington’s brother in Tennessee, on
the night of January 17. The telegram
had. urged him to come at once.

A check with Grav revealed that he
had made the trip to Birmingham, think-
ing Lola herself might be dead.

There did not appear to be any signifi- -

cance to the telegram and the case.

Two months passed. One bright morn- .

ing in April’ the deputies working~ on
the ‘car angle brought in their report.
“We found a wrecking company that
bought the chassis of Burns’ old Frank-
lin.” a deputy reported.

McDowell leaned forward eagerly.
“Then it was pulled apart and sold
for junk?”

“Not exactly,” the man replied. “This
car had caught fire and‘burned out near
Trondale.” er

The sheriff was silent. a moment.
“Maybe that’s the story the wrecking
company heard. For my. part, I believe

_ the car was deliberately set on fire, pos-

sibly to destroy the blood of Jake Pres-
cott.” He paused, then asked, “Who
did the company buy the chassis from?”

The deputy took a cancelled check
out of his bill-fold. “The name on this
check says Charles Odiorne,” he stated.
“And the date is during the week fol-
‘lowing Prescott’s disappearance. Accord-
ing to what I learned the car burned

- on Monday, January 18.”

“Odiorne?” McDowell echoed. “Isn’t
he a former convict?” -

The deputy nodded. “He served a
term from Jefferson County, also one
from St. Clair County.”

,  ipegelenwn went to the files, pulled
out Odiorne’s records, studied the
picture thoughtfully. Something about
the heavy-set face struck a responsive
chord in the sheriff's memory. Was
Charles Odiorne the mysterious “Mr.
Gray”?

McDowell ordered Odiorne brought in

- at once. When the corpulent, sober-faced

man was brought into his office Mc-
Dowell was once more struck by his
resemblance to the description of “Mr.
Gray”.

Aided by Deputy Rickles, Deputy
Tate and others, McDowell questioned
the man. He refused to talk, however,
and no amount of persuasion could move
him. ;

The sheriff went into a conference
with his associates. “I’m satisfied Odi-
orne figures in this somewhere. But
we've got to get evidence that will make
him talk.”

McDowell and Rickles drove to the
home of E. J. Burns. The tall gaunt-
looking man greeted them cordially. His
lean face registered shock when he was
told about his car. When informed that
Charles Odiorne had accepted a check

PTET aD 2H ste operas crm

ra hii nadine Tho

Then, MacNicoll read the thirty-three
love letters to the jury as the spectators
in the crowded courtroom listened in-
tently, ;
The detectives, Bullock and Warnack,

told of how they had been under the

33 LINKS IN HIS

had reported them.

/

from the wrecking’ company for the
chassis, he said, “To be truthful, gen-
tlemen, I suspected Charlie of stealing
my car. But had no proof, so I couldn’t
speak out. But what you say convinces
me. I'll swear out a complaint against
him right now.” ;

“And I suppose you can account for

your whereabouts on the night of Jan-.-

uary 16?” McDowell queried.

“Oh, yes,” Burns replied. “My wife
will telt you that I was at home all
evening.” ‘. ‘ :

“Your wife?” the sheriff echoed. “I
was’ under the impression you were a
widower.”

Burns smiled. “I was until I married
again.” Then he left the room and re-
turned with a beautiful young woman.
“This is my wife,” he said.

The sheriff stifled a gasp. ‘For the
young woman was none other than pret-
ty Lola Buffington!

During the next few days he attempt-
ed to trace Odiorne’s movements fol-
lowing Prescott’s diappearance. He soon
found a bus driver who remembered
seeing Odiorne at a bus stop in Iron-
dale on the Monday that Burns’ car was
damaged by fire in that section. .
_ The bus driver said Odiorne did not
board the bus but flagged it down and
called to a tall, spectacled man with
gray hair to get off there.

Who was the tall, gray-haired man:
The description fit that of E. J. Burns,
the sheriff reasoned, but it could also
be used as identification for several hun-
dred other men in‘ the city.

Just when -McDowell was wondering
how to go abcut learning the identity
of Odiorne’s companion, John McFar-
land reported on the axe angle. “Jacob
Krantz, a hardware merchant, says he
sold the axe found in Prescott’s abdo-
men,” he said.

“Who bought it?” the sheriff asked.

“E. J. Burns,” was the reply. |

McDowell started even though he was
somewhat prepared for something: like
this. “Is Krantz sure about it?” he per-
sisted. :

“He couldn't be mistaken,” McFar-
land replied. “He’s known Burns for
years. He .says he can ‘identify the axe
by. a particular nick in the blade. Says
he told Burns it was returned by an-
other customer because it was defective.
But Burns, ‘he said, insisted on taking
it, told him it would be good enough
for his purpose.”

Jefferson County’s handsome, portly
sheriff sat back in his chair, éndeavored
to fit this bit of information into the
picture. Was Burns the man the bus
driver. had seen with Odiorne in Iron-
dale?. Was Burns’ story of his car being
stolen the truth or a well-calculated lie?

The sheriff called im his deputies, put
the facts before them. Deputy Rickles
spcke up, “This man Burns,” he began.
“When he said he suspected Odiorne
of stealing his machine, I got to won-
dering how he knew Odiorne and so
forth.” r

“So you investigated?” McDowell
questioned.

“Yes. I learned that Burns renewed
an old acquaintance with Odiorne when
he served a short term for manslaughter
in prison,” ‘

McDowell’s keen eyes were now alive
with interest. “Why was Burns in pris-
on?” he asked.

Rickles explained. “Burns was tried

a DA ie ale EO Line ce i
x = nad ~ ™ piped

Corinth Street viaduct and had seen
Gragg alone from before the time he
said the drownings occurred until he

After twelve hours of deliberation fo.
lowing five days of trial, the jury re-

Series. ae

three times for murdering Dr. W. H
Godwin, a Republic Steel Company phy-
sician, on the night of January 6, 1931.
He was convicted twice and each time
‘the verdicts were reversed by the Ala-
bama supreme court and new trials were
granted. He was convicted a. third time
and given a short manslaughter sentence!

[Yycpowet. leaned back in his chair.

He knew the suave, smooth Burns
would never confess, His only hope, he
felt, lay in getting Odiorne to talk or
in obtaining conclusive evidence.

Checking with McFarland, he learned
that bloodstains had been found on the

‘rear axle housing of the burned auto-
mobile. He canvassed Prescott’s neigh-
borhood once more and found a filling
station attendant. who swore he saw
Burns and Odiorne together on the night
of Prescott’s slaying: ‘This meant: that
Burns had lied: about his car being
stolen during the afternoon. .

’ McDowell, however, knew that Burns
would lean heavily on his alibi. He ques-
tioned Lola Burns again, placing her in
protective custody. She declared that
she would do her talking from the wit-
ness stand and she would tell the truth.

_--McDowell searched the license clerk’s
records, and of course found that Burns
had ‘married Lola Buffington. In the
state of Alabama, a wife cannot be
forced to testify. against ‘her husband!

The sheriff turther learned that Lola
Burns had also been her. husband’s
housekeeper prior to their marriage and
was at his English Village home on the
night of January 16, even. as. he main-
tained. : :

McDowell questioned Odiorne again,
faced him with the overwhelming evi-
dence and suspicion against him and his
‘promoter friend. Finally, Odiorne broke.
He admitted being present on the night
Jake Prescott was slain. In a lengthy,
signed confession he related the sordid
details of the crime. He stated that he
met Prescott when he accompanied
Burns to the bachelor’s home a week
before the slaying. :

He admitted using the name of Gray
in introducing himself to Jake Prescott.
Burns, he said, told him be wanted to
see Prescott about some papers.

On the night of January 16, Burns and
Odiorne again drove to Prescott’s home.
Burns told Odiorne that Prescott was
Lela’s guardian and that he wanted him
to sign some papers so she could dis-
pose of some timber holdings.

Odiorne told of arriving at Prescott’s
house,: of finding the old man sitting
on the side of the bed. He stated that
Prescott signed the papers Burns pre-
sented and when Burns lyingly said,
“Lola’s parked out yonder,” the old man
agreed to accompany them outside.

The police claimed that on the ruse

of meeting Lola on Port Birmingham .

highway, the two men got Prescott in
Burns’ car and drove away. After driv-
ing several miles Burns declared he could

‘ not find Lola and returned to the vicinity

of the Prescott home. All three left: the
car and started to walk. On the pretext
ef getting the ignition key from the car
Burns went back to the Franklin and
returned with a small axe.

“When Burns returned to where we
were walking he.slinped up behind Pres-
cott. and ‘struck him a glancing blow
on the head,” Odiorne declared. “Pres-
cott cried out, ‘My God. don't kill me’

and tried to run awav. Instead, he. fell
to the ground and Burns gave it to’
him gocd then.” - i

’ Qdiorne stated that thev lifted Pres-
cott into the car, placed him in a com-
partment formerly used for a rumble
seat. Prescott was still groaning’ when
they drove away. . :

Presently, Burns stopped the car—
Odiorne said Burns whipped out Pres-
cott’s knife which he had taken from
him at the house, slit- the old man’s .
throat, declaring, “Now, damn you, you

ewon’t groan any more.” : 2

He stated that Burns threw the knife
into a creek. “I saw Burns cut off a
leg from Prescott’s trousers,” Odiorne

‘went on. “But I did not see him open
the abdomen and place the hammer and
axe in there. He shoved the body into
the water and finally pushed it to deeper
water with the same sapling he used
to test the water depth.”

Odiorne stated that after disposing of
the bedy, Burns got back into the car
and suddenly backed it toward him in
an apparent effort to run him down.
He declared also that on a latersocca-
sion the became suspicious and_ told
Burns, “You won’t be able to slip up
on me like you did Prescott.”

Odiorne said Burns replied, “You're
in this as deep as I am.” whe

“He told: me he could send me to the
penitentiary and beat the case himself,”
Odiorne went on, then related the de-
tails pertaining to the burning of the
car—details which McDowell and_ his
able men had already uncovered.

URNS was arrested, charged with
murder. On July. 11, he was for-
mally arraigned. He pleaded not guilty
by reason of insanity. He was immedi-
ately indicted. While awaiting trial he
became a prolific letter writer, sending
missives to his wife and to Odiorne.
McDowell intercepted these notes. Sev-
-eral of them were very incriminating.
In them Burns mentioned that he was
“going to get $50,000” out of the deal.
He also wrote notes to Odiorne advis-
ing him to keep quiet about the case.

Burns was brought to trial late in

July. Horace Alford represented the de-
fense. Assistant Solicitor Burgin Haw-
kins handled much of the state’s case
under the supervision of Solicitor Robert
McAdory. :
- For more than two .weeks the trial
continued with Odiorne as a star wit-
ness for the state. When Lola Burns
took the stand she indicated for the first
time the part she was playing in the
drama, She declared that she woke up
in the middle of the night of January
16—when Burns claimed he was at home
and asleep—and E. J. Burns was not
in the house! #

Thus was Burns’ alibi permanently
exploded.

On July 28, the jury retired to con-
sider a verdict. When they returned. the
foreman announced that Burns had been
found guiltv and recommended the death
sentence. On the following October 20.
Burns was formally sentenced by Judge
John C. Morrow.

The case of Charles Odiorne, at this
time. is still pending trial: It is up to
the jurv to decide his innocence. Lola
Buffington and her brother, the real Mr.
Gray were, of course, absolutely inno-
cent of any wrongdoing and had no part
in the crime. :

i Bese $95, MES jars PR REE ees

turned a verdict of guilty, which Gragg

heard without display of emotion—the

first case in which a death sentence for

murder had been returned:on circum-

stantial evidence in Dallas County in

sixteen years. | +: .
1

Judge Roy Stout passed the sentence
of death in the electric chair. "ha,

Editor’s Note: The name Roberta Dan-
vers is fictitious to save embarrassment
to this innocent person.


“ Sie gle “
3U TAN Me g Blber u Vow 9

BURNING

MR.
BURNS

he sat on the brink of oblivion. There

was the usual pre-execution shadow

of silence in the death house at Alabama’s

Kilby Prison and in the dread chamber

only a few steps away the electricians were

making their final tests.

The graying, bespectacled prisoner for
whom these preparations were going for-
ward was calm and hopeful. “The gov-
ernor won’t let me burn,” he confidently
predicted.

On 14 previous occasions he had been
right as his case was sieved again and
again through the colander of the law. It
had become a landmark in Alabama legal
history in more ways than one.

q It began on January 17, 1943, when
neighbors of old Jake Prescott, a politi-
cian and wealthy timber owner of the

. Maxine district ir western Jefferson
County, became suspicious because. Pres-
cott’s. livestock was untended.

Sheriff's officers made a search which
was ended when, three weeks later, a
couple of passing Negroes found Prescott’s
body floating in Short Creek not far from
his home. Mutilation of the body and the
discovery of a hammer and axehead se-
cured to the corpse left no doubt that he
had been murdered. ,

Neighbors remembered that on the night
before “Uncle Jake” disappeared an auto-
mobile had chugged up to his home. It
was a car with a distinctive rit-tat-boom-
bang to its engine.

Several possible. motives could be im-
agined for the killing. Uncle Jake had be-
friended several poor young farm girls
in the neighborhood, and it could be that
some parent or bucolic swain had placed
a wrong interpretation on his liadelloonas.
His political activities easily could have
aroused a mortal enmity. There was the
possibility, too, that robbery had prompted
the crime. .

The auto which had stopped at Pres-
cott’s cabin the night before his disap-
pearance was identified as an old sedan
owned by Elbert J. Burns, a Birmingham
real estate and timber broker, who ad-
mitted he had been trying to purchase a
tract of timber from Uncle Jake.

“But it wasn’t me who went there that
Saturday night,” Burns objected. “My car
was stolen Saturday afternoon.” ;

It had been so reported to the police in

‘Birmingham. A few days later it was
located, stripped and burned out, in a

{ junkyard near Irondale.

The machine had been sold by Charles
Odiorne, an ex-convict. Under question-

the fifteenth time in three years

Burns had slain Uncle Jake, although he

Lett

ing, Odiorne finally admitted that he and »

AN ae i
cea) Arie!
yar RE py
‘a Ss HY) abi ae

“They lied!" said Elbert J. Burns.

placed a major share of the blame on
Burns, whom he had met in prison some
years before.

Investigation of Burns’ background dis-
closed that he had already served a term
for homicide. In 1931 Dr. W. H. Godwin; F
a steel company physician, answered a,
call to a shack in a poor section of Birming-

ham, where he was set upon by two Ne-"s%,

groes and a white man.

He was shot and mortally wounded, but
lived long enough to name Elbert Burns
as his slayer. The motive had been Burns’
attempt to gain control of a $40,000 timber
tract owned by the doctor.

And, according to Odiorne’s confession,
it had been for possession of Jake Pres-
cott’s timber holdings that Burns had
killed the old bachelor in his cabin the
night of January 16.

In the Godwin murder Burns had gotten
off with a manslaughter verdict, under
which he served 18 months in prison.

When brought to trial for the killing of
Jake Prescott he depended largely upon
an alibi by his very pretty young wife
to clear him, but she sat in the witness
chair and. said he had not been home all
night of January 16-17, and had returned
in the morning with Odiorne.

That testimony, with Odiorne’s, resulted
in a verdict of guilty of first degree mur-
def Burns was sentenced to die in the
elédiric chair.

His attorney, Horace Alford, made what
contemporary Alabama barristers say was
a classic defense.. On appeal he probed
every weakness ‘in the state’s case; ‘and:

firmly alleged perjury by the young wife;
of the defendant;«,, : :

The state’s higher courts sustained the
verdict and sentence. An appeal through
the federal courts'to the U. S. Supreme
Court was rejected on grounds that the
state courts had: competenit: jurisdiction. .
- All along the ‘way Governor ‘Chauncey

; Sparks granted reprieves to allow de-
cisions upon appeal. When the first cir-
cuit to the U. S. Supreme Court had been
completed, it looked as if Burns was done
for. Then his attorney introduced a state-
ment by Mrs. Burns alleging that she had
testified falsely against him under coercion
of law officers, and the whole route of the
courts—state and federal, up to the Su-
preme Court, was trevertied, again.

But the state courts rejected the state-
ment and the federal courts refused to
intercede above the Alabama judiciary.

By Thursday, March 14, 1946, Burns had
had 14 reprieves. On that afternoon a
brother from Pittsburgh pleaded with the
governor for clemency, a commutation to
life imprisonment, a little more time... .

Whee De ree€
wJuty, L746

His pretty wife Lola was a witness.

Meanwhile Attorney Alford was moving
as much of heaven and earth as was in his
power to save his client. Why, he asked,
had not Charles Odiorne, although in-

dicted with Burns, yet been brought to

trial? Was there an agreement that Od-
‘iorne, still in jail awaiting trial, would go
‘free: after Burns died?

“tn his cell Elbert Burns waited for news

of reprieve No. 15. As the hours crept by
the small doubt that always lurked: in his
heart began to grow. He presented a book
to a Salvation Army major of whom he
was fond and, opening the cover, the major
read an inscription on the flyleaf. .. .

I still have faith and hope. If you see
me murdered it will be for a crime I did
not commit.

The slim, grizzled prisoner spurned the
customary feast which is the traditional
“last meal” in the death house. He wanted
no interruption of his final hours, which
he spent in writing. .

He composed a long letter addressed “to
whom it may concern,” in which he re-
viewed much of the testimony in his case,
concluding with the allegation that every-
body who knew about the Prescott slaying
knew also that he had had no part in it.

At midnight there were steps in the
death house corridor. Warden William
Pitts shook his head in answer to the
question in Burns’ face.

Burns walked unaided to the brightly-
hued chair. He was nervous, but kept his
self-control. He had: left behind a long

final Statement asserting his innocence.

rom the brink of eternity he lashed out
with a last blast.

“I hope everyone who lied to electrocute
me burns in hell!” he sna 4
' The charge struck his slight body like
an_ atomic explosion. . . .

There were friends of Elbert Burns who,
after his’ body had been claimed by the
brother from Pittsburgh, said the timber
broker had died in the chair not for Jake
Prescott’s death, but in belated revenge for
that earlier crime—the slaying of Dr. God-
win. Public sentiment, not evidence, they
claimed, condemned him.

But whether, as he insisted, Burns was
framed or if he was the brains behind
and the chief perpetrator of Jake Pres-
cott’s murder, his case was unique for two
reasons,

He had been reprieved more than any
other Alabaman who finally went to the
chair, and he was one of the very few
persons in the state ever to be tried for
and convicted of two separate and un-
related killings. —Jack Harren

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By WILL REYNOLDS

HERIFF Holt McDowell looked puzzled as he stood
on the porch of Jake Prescott’s home on the banks
of the Warrior River near Birmingham, Alabama,
that chill afternoon of January 17th and looked over

the shivering crowd of grim-faced men and women
assembled in the yard.

“We've turned this place upside down,” he announced i

from the front steps. . “If Jake Prescott’s been mur-
dered, ‘like you all imagine, where’s his body?”
“That’s what we called. you to find out, Sheriff,”

’ woman who identified herself as Mamie Harbin aid.

She edged near the porch as she continued talking.
“Jake isn’t here, and from the way his cows and chickens
are carrying on, they haven’t been fed since yesterday.
That’s when I saw him last. And I think. that’s when
he disappeared. We figure old Jake’s been done away

with, and it’s up. to you to find the corpse.”

The handsome, well-built sheriff spread his hands
in a gesture of helplessness. “There’s. nothing out of
place in the house and not a spot of blood anywhere.
But still you think it’s murder. I'd like to know one
good reason why.”

A heavy silence fell over the crowd. The tall pines

back of the house threw dark shadows across the place. —

The cold waters of the Warrior River swirled angrily
over jutting rocks as the stream slipped rapidly past the

‘ “MURDER SUSPECT—
is escorted from the courtroom
- by Deputy Sheriff Troy Tate,

at ‘house. “January of “1943 was un-

i seasonably | cold and stormy for shat
part of the country. ~ -

The setting itself -was soar Lo

: cause Prescott’s. neighbors to think

of murder.

Presently, Mamie Harbin spoke again.

contest, ” she said darkly. -

i “But McDowell was certain they had other _
‘ and better reasons for thinking so. He bee Labinteinely

them for more information.
“That bump-
ing noise I heard over here last night wasn’t a Catan

Before the sheriff could pal iether woman’s =

“That car racketing by so late meant some-
‘It was Lottie Burrell, another of Prescott's

voice said:
thing, too.”

‘ neighbors, who spoke. Pe
“” “And it’s common knowledge that Jake’s had a churn .

full of gold settin’ around,” someone else chimed in.
McDowell held up his hand for silence. - “One thing»
at a time,” he begged. “You mention bumping noises

left word with one of us.’

“But why should he account to his neighbors for his

comings and goings?” McDowell objected.

oe

uy and a car. Maybe Jake took off on a . trip somewhere, |
-to see a relative or a friend.” . Se
_. “And leave all ‘his clothes in the house?” Mrs. Harbin,
countered. “Besides, if Jake was going reine he'd. :

Pig

“He always asked one of us to feed his stock, »”'a man pe

spoke up. .
his care.”

“All the same,” the sheriff auld heavily, xs | think we be:

ought to check that angle—” EN
: “I’ve already checked it,” Mrs. Harbin cut in: -aq ot
phoned his brother, Sam, and he says he hasn’t seen

Jake in more than two weeks. He thinks like we do,

Rese never Soh pei Roe Bvins ne in 3

Sheriff, that something must have happened to Jake, e

and he asked me to phone him back as soon as you

- Jooked around.”

At that moment, Deputies Dewey Rickles ‘and Troy.
Tate, ace investigators for the county who had accom-
panied the sheriff on his Sunday afternoon call, emerged
from the front door of the house.
to them. “Find anything?” he asked in a low voice.

“There’s a bedroom in here that’s interesting,” Rickles age
“The bed’s all messed up. Seems like there’ sbeen, |
a fight around it?

said.

He pulled a tiny wisp of cloth out of his coat Dtiati
“Found this woman’s handkerchief just under the ped.
It’s. got lipstick on it.” wae :

cDOWELL took the piece of perfumed linen fa .
It was an expensive = .—

and carefully looked it over.
handkerchief. The woman who lost it ,_ oepenaedt are.
lent taste.

The sheriff stared off into space as he coupled AG
neighbors’ comments with what the deputies had told
him. Indications of a fight and a woman's handkerchief
in a bachelor’s bedroom made Prescott’s eceeeiahenieiracens
look dubious. “Anything else?” he asked.

“We took a glance through Jake’s photo album,” Tate
eae up.

McDowell turned

ay ek

“Judging from the Sepe we saw, he Menge a ao <2

a


“ond Prescott’s

across Evelyn
that she not

“culiar sounding
rattled down
id seen it late
in disappeared.
n?” McDowell
Jently.
an Burns,” the
an old model

Iving it when
lay night?”

” the youn
fact, I eouldn’t
But I assumed
el, because he
¥t.

Burns?” the
‘where can I

agham,” Miss
ley call him

his deputies
Birmingham

the telephone
1ey found an
it of English
i. They

‘S -aler in
- nee to

-haired man’
e door to the
cantly. “What
sked.

g,” McDowell

. Inside, bade
comfortable ,
1d Jake miss-
ce genuinely
ind it.”
else,” Mc-
cially since
3 In at Jake’s
sappeared.”
aimed.
throat. “You
nklin, don’t

short silence,
t. did go to
mH. But 7

it to some-

od it stolen
rns replied.
if you wish
dureau and

3urns’ sug-

ective D. H.

him about

e.

etalan Sat-
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Vv iven’t

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or evidence

> telephone.

dible gasp. es S:

ind Burns’

_-he stammered. VS

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Ce e She & re wie te pap MARR mel 5 Bibs cts ek 3
ii ees Be ana ate BS Se eee te FT a See eae OR

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ye

face startled, questioning. “You
mean Jake’s been found . {%dea

McDowell shook his e
hasn’t been found at all, Bur
told the man. “But his nei
sure he’s been murdered— :
murdered last Saturday ‘nig
his body hidden sometheee
pa surns gs his head ‘mournfy!

ope it isn’t true,” he mourr
“Jake Prescott was poe |
mine.” 3

“Just for the
said, “I suppose you”
actly where “you
night?”
The man

re

in
She tent

‘in Prescott’s. bedroom,
said: “We’ve checked all these women

but Lola Buffington and she’s’ the

“prettiest one in the outfit. Get go-

ing on her and see what you can find

sis.

The deputies nodded and left at
once upon this assignment. McDowell
contacted posse leaders in charge of
the Prescott search, but they had
nothing to report. They were still

- convinced, however, that Jake Pres-

cott was a murder victim.

ATER that day, Rickles called the
sheriff over the phone. “We've got a
line on Lola Buffington,” he reported.
“Everybody says she was Jake Pres-
cott’s ward. But that’s not all. Lola’s
been married a couple of times and
Buffington is one of her married
names. She was originally Lola Gray!”
McDowell was startled. Was the.
Gray who had visited Prescott any
kin of Lola’s—perhaps her. father,
brother, uncle or cousin? :
Rickles cut’ in on his reflections.
“What do you want me to do now,
Chief?”
“I want you to find her and bring

‘ her in for questioning at once.”

Rickles said he would do his best
and broke the connection. McDowell
grabbed his hat and went to see Sam
Prescott, the missing man’s _ brother.

“I can’t understand Jake’s disap-
pearance,” Prescott said in answer to
McDowell’s questions. “As far as I
know, Jake didn’t have an enemy”in
the world.”

“But he’s gone,” the sheriff pointed
out, “and all his neighbors are sure
he’s been murdered.”

“It beats me,” Prescott replied. “I
hate to think Jake has been killed,
but I feel sure if he was alive he’d
write me a line to let me. know he’s
okay.” . ‘

“Now if we could only dig up a rea-
son why anyone would want to kill
him we might figure out who. did
away with him,” the sheriff sug-
gested. ae

Prescott rubbed his jaw a moment
then shook his head. “I can’t imagine
-why anybody’d want to kill Jake.” .

“What about money for a reason?”
McDowell asked, and Prescott agreed
that his brother could have been a
robbery victim. " 2

Early the next morning Rickles
brought Lola Buffington into Sheriff

. Birmingham reported

in Tennessee, | didn’t know Uncle
Jake was acquainted with anyone by

that name.”
The sheriff questioned the young

woman further, but soon decided she
had no information which would
help him. He asked her to keep in
touch with him, then allowed her to

oO.
: In the following days and weeks,
McDowell and his men worked hard
to clear up the mystery of Jake Pres-
cott’s disappearance. But they got no
further with it until the afternoon
of February 1lth, when everyone’s
fears concerning Prescott’s fate were
confirmed. ion

Two boys who had gone fishing
to the Wofford Oil Creek near Port
they saw a
man’s body bobbing up and down in
the muddy waters.

Coroner Gip Evans and Identifica-
tion Expert John McFarland accom-
panied McDowell, Rickles, Tate and
several other officers to the scene.

Dr. J. B. Vines and.Manley Vines
were among those crowded on the
banks when the body, floating under
a railroad trestle, was brought to
shore by an undertaker’s crew of
attendants. As the water-soaked figure
was laid out on the ground, McDowell
asked: “Anybody here know who
this is?”

Doctor Vines stepped forward.
“That’s what’s left of Jake Prescott,”
he said grimly.

“You're certain of that?” the sher-
iff asked. : .

The doctor nodded emphatically.
“I’ve known Jake a long time. It’s
Jake all right.” oi ae

Several others corroborated the
doctor’s identification. ‘

Doctor Vines and Coroner Evans
examined the body briefly. “His
throat’s been cut,” Evans told Mc-
Dowell. “That’s about all we can
determine .until an autopsy is per-
formed.”

The sheriff accepted the informa-
tion with a nod and watched while
attendants removed the body in a
Hillman Hospital ambulance. Then
‘the assembled officers combed the
creek bank for possible clues. They
worked for more than an hour, but
the approach of darkness brought
their search to a halt. They had found
nothing.

The officers piled into their cars
and drove back to Birmingham. Mc-
Dowell and the coroner stopped at
Hillman Hospital where Dr. J. C.
Cunningham was just completing hi
autopsy. ok .

“What’s the dope?” McDowell

asked, then added: “In addition to

Jake’s having his throat cut.”

Cunningham wiped his hands on a

towel as he spoke. “There are a lot
back of

of bruises and cuts on the

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land in the Warrior bottoms. Some say he refused
forty thousand dollars for just one little strip.”

“Jake was a rich man in these parts, Sheriff,” another.
witness volunteered. “Besides his timber and farming.
land in Alabama, he owned a lot of land and stock in
Oklahoma.” or

McDowell glanced around a the einsost shabby house.
on the river’s bank. Then he thought about the char-
acter of the man who had lived there. It was quite
possible that he was as rich as they claimed and_-still
went around in overalls. Many rich farmers, especially
bachelors who lived alone, were eccentric that way.

“Someone mentioned a pot of gold—” he began.

Everybody seemed to want to talk at once then. And
when McDowell had straightened out their jumbled
converasticiy. he learned that the “pot of gold” story
had come from one S. J. Myrick, a former resident of
the neighborhood who now lived at Flat Creek. Al-
though Myrick insisted he had seen the gold with his
own eyes, none of the other neighbors had. But it was
a wondrous legend to them, and whenever they thought
about Prescott they thought about the mysterious gold.

McDowell made a mental note to check with Myrick
about the gold story. Rickles brought out the pictures
then and the sheriff went through the crowd trying to
identify them. He learned most of the names of the
women. There were several snaps of Prescott himself
shown with a lovely girl, obviously in her teens. . She
was beautiful enough to make McDowell gasp.

_ Several of the neighbors told him that the girl, now
a grown woman, was Lola Buffington. “Jake’s known
her since she was a baby,” one of the neighbors volun-
““He’s practically shapsii her. She’s been around

_ here a lot.” :
McDowell made a note on the ick. of an envelope to

DEFENDANT—— ret e
(at left of photo) in courtroom. Deputy Rickles is at
right. A second cotenient is now sh asl trial.

check with Lola Butingion for possible Glues to Jake
Prescott’s strange and sudden disappearance.

Then he asked the neighbors fora list of Prescott’s
friends, besides themselves, and business acquaintances
who had visited him lately. He soon had a long list,
but the only strange name on it was that of a mysterious
“Mr. Gray.”

One man said:
the man Jake was afraid of.

“T always figured that Mr. Gray was
But when I tried to find

\

out who this Gray person was, I ran into a blank wall.” _

-bors had talked about. : SF
~stone churn, but there was (Continued on page 94)

“Maybe the name’s a phony,” Deputy Tate suggested.

“That’s what it looked like to:me,” the man replied.
“But I must say Gray didn’t look as important as Jake
said the man who had threatened him was. Gray’s 3°
hard-faced man, and though he dresses well, he looks 2
like a day laborer.” i ae
_- The sheriff promptly placed Gray foremost” on the: >
list of persons to be immediately checked. His mind
was racing with questions, seething with possibilities.’
He had come to Prescott’s place thinking the bachelor —
didn’t have any enemy in the world, but now he could

think of a dozen reasons for the man’s murder—if he — <2

had been murdered. The women in his photo gallery -

‘suggested a number of possible motives—jealous hus-_ ay

bands or sweethearts and Jake’s reputed wealth sug-_

gested motives of robbery and possibly of financial gain. a 2

“Granting that Jake’s been murdered, as you believe,”

“McDowell said to those assembled, where do you Sagite

the’ body is hidden?” shoot A Scheet ie
“There’s the river,” Mrs. oxbin pointed out.

“And the woods,” said Lottie Burrell. “ is

' “Not to speak of old wells and abandoned barns and”

a hundred other good piding pes around the county,”

Rickles offered.

GUHERIFY McDowell faeediniels See nted One men
presént as posse heads and ordered them to begin
their search at once. And he wasn’t overlooking the
fact that he might have missed some clue in his previous
search of the house. For after the crowd dispersed, he

and Rickles and Tate went back through the gloomy,

deserted rooms and combed them with tedious care.
There wasn’t even so much as a pin head that waey
didn’t ice “7 : ;

‘AFTER HE CONFESSED—— = 4

Charles Odiorne (center) after he told what he needa:

: With him are Deputies Rickles (left) and Troy Tate. :

_ Although the bedroom looked as though there had
been a struggle—the bed covers were strewn about the |
floor along with a litter of newspapers and other odds

and ends—the chaos could have been of Prescott’s own eo cs
doing and could have resulted from his failure to _
straighten and clean the room over a period of time. —

7 They looked in vain for the “pot of gold” the neigh- * ©
They found an old-fashioned .

KEY WITNESS——
The attractive Lola Buffington Burns exploded the
alibi of a man in whom the State was much interested.

mighty pretty.”

' “Good enough,’ McDowell said. “But what else? Is
there any blood in the bedroom? oe what about his
personal belongings?”

“There’s no blood, and the neighbor we took in there
with us says his clothes are all there—all except an old
pair of overalls he was wearing when last seen.”

McDowell nodded his acknowledgment of this report.
Then he turned to the crowd. ‘“Let’s get seme of your

, stories straightened out,” he suggested. “Did you hear
anything else besides the bumping noises and the car?”

“Jake’s dog howled like he was being killed,” Mrs.
Harbin volunteered, and several others backed her up

: with a nod. .
“About when was that?” the sheriff ceed “And
when did you hear that car driving toward Jake’s place?”
ae Mrs. Harbin turned to Lottie Burrell. “That car went
by around eleven, didn’t it?” And when Mrs. Burrell
agreed, she continued: “And it was about thirty minutes
later, more or less, when the dog began to eke He
kept it up most all night.”
Several members of the crowd volunteered that they
_ had heard the car rattling along the lane which dead-
‘a - ended at Prescott’s house. One man said he had heard
_- that same car on several other occasions. ©
McDowell looked interested. “How do you know it’s
the same car?” he demanded. ~ ;
“It sounded louder than a thrashing Sachine” ” the

1ot ot lady friends. And Some of them were young and

believe it if he told me. The way he went on, the
- sounded like some Mister Big from Birmin Sham, pi ee :

man stated. “And it bumped along like the motor block as

was loose in its frame. I) never saw the « car, but m bet
_it’s as old as Methuselah.” =.

- The sheriff turned to Rickles. “Get those pictues
from the bedroom and bring them out here. geeks we
_can find gut who Jake’s lady friends are.” 2

_ The slim, dapper Rickles nodded and went inside: a

“Now,” the portly, handsomg sheriff said to the crowd, |
“I_want to find out exactly when. Jake Prescott was s last
‘seen and by whom.” : ® 3
_ “That’s easy,” a man Epoke up: Mrs. Harbin saw.
him last. Didn’t you; Mamie?” ©." > ie

The woman nodded. “It was yesterday aternea oh
saw him at his mailbox just after the postman went by.
He struck me then as acting queer but I didn’t want to
meddle, so I didn’t ask him-about it.” - % mae

“What do. you mean _by at McDowell asked
sharply. ; :

“It was a long letter he got out of his maiP box, Es Mrs.
_.Harbin explained. “He acted like he was afraid of it.”

- “Maybe it was from that man—threatening him again,” *.
a man in the crowd spoke up. _

“Threatening him?” McDowell echoed. Sale should
anyone threaten Jake Prescott?” = ©

“We don’t.know that,” the man replied. “But Jake’ Ss
been telling the tale around. Séems that someone’s
been trying to get some money out of him that way.”

McDowell was jolted. _“And he didn’t explain any-
thing more about it?” he demanded.

The man shook his head. “Frankly, ‘we figured it “4
‘was a lot of baloney that Jake cooked up to make -
himself sound important. Now, I’m not so sure.” The
man pulled at his ear reflectively, then added, “Jake
even went so far as to say this man had already ‘ducked

one murder rap and wouldn’t be above bumping him if
he didn’t pay. off.”’

SHERIFF McDOWELL—— |
He headed the investigation of a case that w was plogdea
with surprises and had . number of unusual angles,

aed ig

“And he never gave : you the slightest peling as : to
who the person was?” <> sara. ;
The man _ thought that .over. “Jake did say once _
that the fellow was somebody important, ang when I
tried to get the name out of him, he said } wouldn’t

Another man spoke up. “Jake's had im
for a long time, Sheriff. They were a

Portant visitors
fter his timber |

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nothing in it. The churn was slightly
warped, as if it had not been used re-
cently. +4

The three men finally gave up their
. search as fruitless. On their way out
of the vicinity they questioned fami-
lies who had not been represented in
the grim aggregation that afternoon.
But these families could offer no fur-
ther suggestions. Nearly everyone liv-
ing around there had heard the an-
cient car rattling by and had heard

Jake’s dog howl. And they were con-
vinced that Jake Prescott’ had met
with foul play. . “

HILE a number of posses were

searching the western part of
Jefferson County for a trace of Jake
Prescott or his dead body, McDowell
and his deputies paid a visit to S. J.
Myrick in Flat Creek. :

“The folks along the Warrior River
claim you said Jake had a churn full
of gold,” McDowell began after he
had explained the purpose of his visit.

Myrick nodded. “He had some gold,
all right, but it wasn’t in a churn.
It was in a half-gallon bucket.”

“Where did he have it hidden?”

Myrick considered this question
‘carefully. “I’ve only got Jake’s say-so
about it, but he told me he had had
it under the front porch.” °
pind how did you happen to see
i?’ ;

“It’s an odd story,” Myrick replied.
“He came running over to my house
one morning with a bucket full of
gold. Said he’d dreamed his house
burned down and he wanted to leave
the gold at my place.”

“Then he believed in dreams?”

“I suppose he did. But an odd thing
happened. His house really did burn
down that next night.”

“Know what he did with the gold
after that?” asked the sheriff.

The Flat Creek resident shook his

| head. “He took it away with him not

long after that and I never saw it
again.”
Just to make certain they were
overlooking nothing, McDowell and
his deputies went back to Prescott’s
house and searched it again. They
took shovels and dug around the
foundation of the house and probed
in the soft earth all about the place.
But they found no trace of the bache-
lor’s gold and no signs of recent dig-
ging.
McDowell then began checking the
women in Jake’s collection of snap-
shots. He questioned more than a
dozen women, but learned nothing
important from any of them. Prescott
had always said he had never taken
more than a paternal interest in any
of them.

Reports from _ posse
charge of the search for
bachelor began coming in.
all negative. No trace had been found
of Jacob Prescott, either living or
dead. The sheriff ordered the men to
continue their search. Then he began
another canvass of the countryside
in which Prescott had lived, extended

leaders in
the missing
They were

his questioning to those who lived

face start
mean Ja’

‘RICH BACHELOR

Continued from page 37 ‘st sure he’s
Sih isi oe Ban murderec
his body
Burns
vate “IT hope
ay 45 se ete x ane “Jake Pr
on the highway beyond Prescott’s mine.”
lane. : > ety ee “Just
In this way he ran across Evelyn said, “Is
idmore, who swore that she not ° actly w
only had heard the peculiar sounding night?”
machine which had rattled down The mi
Prescott’s lane but had seen it late - at home,
the day the elderly man disappeared. ~ -plied. “N
“Whose car is it then?” McDowell _ _ , that whe
snapped, a trifle impatiently. wali here just
“It belongs to old man Burns,” the _— Pec Okay,
witness replied. “It’s an old model — -in_ touch.
Franklin.” ie fs ee _ thing abi
“And Burns was driving it when son: thi
you saw the car Saturday night?” “ once,” B
“I didn’t say that,” the youn - McDov
"woman Said drily. “In fact, I couldn’t back to
see who was driving it. But I assumed . more loo
Burns was at the wheel, because he "in 3Pres
visited Uncle Jake a lot.” — - said: “W
“Who is this man Burns?” the. ~', but Lol
sheriff inquired.-.““And: where can I > prettiest
find him?” ; sieeteng > ing on he
“He lives in Birmingham,” -Miss out.”
Pridmore replied. “They call him ' The d
‘EJ.’ That’s all I know,” once upo
> feat Sie . contactec
CDOWELL and his deputies ~ the Pres
, drove at once to Birmingham nothing
‘and started checking the telephone ~ convince
and city directories. They found an | eott was
. J. Burns, a resident of English | ee ie a |
Village, listed in both books. They ATE:
learned also that he was a dealer in a “a sher:
real estate. They drove at once to “Se ‘line on |
English Village. Te a eo “Every be
Burns,. a tall, white-haired man oe eott’s we
in his.sixties, opened the door tothe 5.9 .oo). been ma
officers. He nodded pleasantly. “What FS -Buffingtc
can I do for you?” ‘he asked. Sea names. S
“Jake Prescott’s missing,” McDowell : McDov
said without preamble. - 5 ve Gray wi
Burns invited the men inside, bade kin of
‘ them be seated in the comfortable , _ brother,
‘ living room. “My old friend Jake miss- Rickle:
ing?” he echoed in a voice genuinely - “What <
grieved. “I don’t understand it.” Chief?”
“Neither does anyone else,” Mc- “Twa
Dowell replied. “Especially since * her in i
your Car was seen turning in at Jake’s Rickle:
lane on the night he disappeared.” and bro!
“My car!” Burns exclaimed. grabbed
McDowell cleared his throat. “You Prescott,
own a 1930 model Franklin, don’t “T can
you?” he inquired. pearance
Burns nodded. After a short silence, - McDowe
he said; “Maybe my car did go to ’ know, Ji
Prescott’s Saturday night. But J the wor!
didn’t!” e i Butk
“You mean you loaned it. to some- out, “an
one else?” he’s bee:
* “No. I mean I reported it stolen “It be
Saturday afternoon,” Burns replied. ~~ hate to
‘“‘You may use my phone if you wish a but I fe
to call the auto theft bureau and > write m
check on it.” ~. okay.”
The sheriff accepted Burns’ sug- ~~ “Now
gestion and called City Detective D. Hi. son why

McKinney and asked -him about
Burns’ 1930 Franklin coupe.

“Yes, Burns reported it stolen Sat-
urday afternoon, January 16th,” Mc- oe
Kinney replied. “So far, we haven't ~
found a trace of it.” eS

“Keep looking,’ McDowell advised
him. “We may need it for evidence
in a murder case.”

The sheriff banged up the telephone.
He heard an almost inaudible gasp.
When he turned, he found Burns’ ae

tlt


as follows:

A54 Ala.

‘cal, -yet their objects are, and their similari-
ity: suggests the same general line of reason-
dng in construing them,” Gray v. Johnson,
BUT Ay oF ec 43 AB Hats: Fetgutl

; - goThis court in Ex parte Thomas, LIB: Ala.
) “|:

1 21-So,-369; construed what; was then part
Of § 2, Article 4 of the Constitution of 1875,
“No Jaw shall be revised,
amended, or the provisions thereof extend-
‘ed. or conferred, by reference to its title on-
ly.” The court in that decision pointed out

‘that.“the mischief designed to be remedied

 .Was the enactment of amendatory statutes
_ in. terms. so. blind that legislators. them-

Selves were sometimes deceived in regard
to their effects, and the public, from the

-Mifficulty of making the necessary, exami-

mation and comparison, failed to become

apprised of the changes made in the laws.”
-) It is obvious that the object of the clause

quoted from the Constitution of 1875 is
Similar to the object sought to be attained
by § 106 of the Constitution of 1901, and

‘at may be said of these two constitutional

Provisions that “their similarity suggests
the same general line of reasoning in con-~
Struing them.” In that case the Supreme
Court of Alabama, Speaking through Mr.
Chief Justice Brickell: said: “The great
body of the Code, civil ang criminal, thourh
there may be the occasinnal miradection of
eew legislation, consists of pre-existing
Statutes. There may be in“some of them
shght changes of verbiage or phraseology,
not necessitating a change of-the construc-
tion they had received, or of the construc-

tion: they would, in accordance with the

general canons of construction, receive,
' There was not an instan- of time, from the
day. of. their original enactment until the
Code: became operative, that they had mt
force acd-effect. Then Vitalie ws. mewer
susgendinier ims. Wires che Cae Recor

19 SOUTHERN, REPORTER, 24 SERIES"

courts are under the duty of interpret-
ing and construing them;. rendering them
harmonious and consistent if possible, or,
if ‘that be not possible, declaring which
shall prevail. But there is no room or rea-
son for drawing ‘them within the influence
of the constitutional inhibition,” Ex parte
Thomas, 113 Ala. 1,5, 21 So, 369, 370,

._ Tf there was. no reason for drawing the
clause, quoted Supra from the Constitution
of 1875, .within. the. influence. of the con-
stitutional, inhibition which -has been. te-
ferred to, it equally follows that, there is no

room for the application of § 106 of. the

Constitution where the adoption of the Code

of 1940 is inyolyed,. wane

PQ) Te is further insisted, however, that

§ 85. of the State Constitution contemplates

a Code made ‘up solely of statutes which
Constitute general law.’ §-85- is as -fol-
lows: “It shall: be the duty of the legis.
lature, at its first session alter the ratifica-
tion of this Constitution, and within every
subsequent period of twelve years, to make
provision by law for revising, digesting, and
promulgating the public statures of this
State, of avgeneral nature. both civil and
criminal. teh : ki ees ¢ 4
There is no prohibition, however, in the
foregzuing’ section which prevents. the da-
clusion of Jocal laws in the ‘Code. “Barat:
itvwere\a local law there is nothing in the
Constitution to prevent the Code from con-
taining a provision of Jocal application.”
Dillon vi: Hamilton, 230 Ala. 310, 314, 160
So. 708, 711, Laws are codified not only
“to make them as certain as practicable,
but also to enable every citizen réadily to
find where they. are and what they declare,
by publishing theni in ‘Systematic,’ con.
Gemsed. fot cleat amd commrchensire fore.”
SACK. ee Baa, ‘Clwarete: a: as fesageer Garry

+

ie al

1“ ag, Wer nn Sarria ron Ree ~
; ‘ ars ae ? a SRA tee cotter: ee <1 o
Sea Stee Tees) tor tie cm ge Te en eee pati
mh “fe a ‘ od pity ae
aS : . . 7 : ‘ eas She os an <a er tei pe Rv
Gi sme ES SA atte Cadesy Sneaem, Awany he onitinen SnOTdeyT aw lkeow

“S632, Gas (been the tile applied an ‘the the daw, should be'Gorced ty.
_ Mgesting. and- revision of the Statutes ofthe Many wolumes which contain gener

Sa, Nene
Sy Ret tg &

State: “A body of laws established by the With local application passed by the gis—
authority of the state, and Gesigned to regu- ent legislatures, 9”

late. completely, so. far a5 a statute may,
the-subjects to which it relates.’ Hendon-v.
White, 52 Ala. 597. I there be contrariety,

_To-sum-up the situation, it was not im-

proper to embrace a codification of general
laws with Jocal ‘application in a Code which

or “repugnancy, or inconsistency, “in -any obviously was primarily devoted to codifica-

of its parts, as may exist in any body or sys- tion of general law. witho

tem of laws, or as not infrequently exists tion,: And since the!act a
in statutes enacted at different periods, the

ut local applica-
: dopting the Code
of 1940 in its entirety 48 a: general Jaw, §

i:


SS IAIN RIK eR allan Ulihab ds Meee,

ics

Code 1940, Tit, 13,
it, 62, § 196"et seq.

set forth in statute
special venire had
or*county, because
been provided for

O40, Tit, 13, § 114;

q et seq.

ne that no objec-
ivenire- except for
moning of jurors
iting the quashing
égiflarities. Code

:

be quashed where’
ode 1940, Tit. 30,

mbodied in Code,
940, providing for
cases in Jefferson
ing special venires
§ therein, though
not void because
Ath constitutional
ice and proof in
legislation. ‘Code

+3 Const. 1901, §§

tutional provision
yf in case of adop-
is the prevention
nediately affected
the end that they

otest against pro~
1901, § 106,

to embrace a ‘co-.
$ with local ap-
ah ——“eemarily
Fen Ww. withe

Onst. 1. § $5;

te ate CAPR ETB Whee See eS:

ll aed. solani 2 sc

‘of law.
U.S: C. A, Const. ‘Amend, 14,

410, Criminal law ©?741(5)

i ea ery
" 4

4

“BURNS vy. STATE: i715: Qe : Ala 451
19 So.2d 450

9. Constitationat’ law $2267
‘Jury (O58 i
The’ Code® sections’ embodied in Code

title 62 providing for secret venires to try

all cases: in Jefferson county court and
prohibiting special venires for trial of capi-
tal cases therein do not:deny due process
“Code 1940, Tit. 62, § 196 et seq.;

Whether: testimony of accomplice, in

murder ‘prosecution was corroborated by

evidence tending to connect defendant with

the killing was question of law, and weight

and sufficiency of such evidence along with
testimony of accomplice to show defend-
ant’s guilt beyond a reasonable doubt, were
questions. for jury. Code 1940, Tit. 15, §

BOF:

tf. Critatnat fave’ en7416)
Corroborative evidence which eae
ens probative criminating force of accom-
plice’s ‘testimony ‘and tends ‘to connect. de-
fendant’ with | commission of offense
charged is ‘sufficient to warrant submission
of defendant's guilt to jury, although cor-
roborating evidence does not refer to. any

particular statement or fact testified to by
accomplice, Code 1940, Tit. 15, § 307.

12, Criminal law Cr444

In murder, prosecution, a writing which
witness swore defendant tried to pass in his
jail cell to. alleged accomplice in his cell,
irecdge him not to talk, was competent,
though paper was not signed,

i

3. Criminal law €=386

In murder prosecution, testimony of .

witnesses based on recognition of defend-
ant’s automobile _by sound alone, was com-
petent..,

14, cetmmnat law: ) e342 l ‘
Testimony tending to show motive is

competent when taken, in connection with

other evidence,:” .. i

15, Criminal law C=-511(1), 753(2)

In murder prosecution, testimony of
allered accomplice was sufficiently cor-
roborated to warrant overruling defend-
ant’s motion to.exclude such testimony and
to refuse affirmative charge requested’ by
defendant. Code 1940, Tit.-15, § 307,

16. Criminal law €=625, 1148 ele ab
Trial ‘court’s refusal to suspend trial

in murder prosecution and submit to ‘a

jury an inquisition as to defendant’s in-

‘County; John C. Morrow, “Judge.”

sanity at time of aciak under statute ‘was
a matter of discrétion and: was not review-
able on appeal in absence of abuse of. dis-
cretion, Code: 440), Tity: 15, SS. 425, 426,
428.

17. Criminal law e>i03acs, 16675013)

Conversation . between trial judge ‘and
defendant’s counsel. in presence of jury as
to whether defendant .was going | to testify
on his own behalf: did not constitute re-
versible érror, where’’no ‘objectién ‘was
made to‘ judge’s* remarks, and ‘especially
where written charge was given by court
that no inference should be’ drawn: from
fact that defendant ‘was not sworn or put
on the stand as a “witness ° in “his own: . be-
half. ise Beit

18. Criminal law ©=918(9)
Trial court didnot err ‘in overnitling
defendant’s! motion» for /a.:new. trial ‘on
ground that defendant::was not present
‘when some of jurors were excused by the
court. ;

19. Criminal law eo

Trial. court did not. abuse its: discre-
tion in allowing state, after defendant had
rested his case, to’ introduce ; evidence not
in rebuttal,

Appeal from Circuit Code Jefferson

Elbert. J. (alias ts J.) . Burns. was con-

_ victed of murder:in the Bret degree, and he

appeals.’ »» y Srvterb edie gee
_ Affirmed. ;

Horace C, Alford, of Birmingham, for
appellant...

Wm. N. Me Orcs sachne ‘Atty. Gen,
and John O. Harris: and Geo. C.: Hawkins,
Asst. Attys. Ge for the, eyState.

STAKELY, Tualichsoy

Appellant was tried “and ebavieted of
murder in the first degree.’ He received
the death) sentence. -It is claimed by. the
State that Jake Prescott’) was’ murderéd
on the night of January 16, 1943. Three
or four weeks later his body was: found
floating in Short Creek in Jefferson Coun-
ty. He had wounds on‘his head and ‘his
throat had been cut. His abdomen was slit
open and in the opening was'a hatchet and
sledge hammer, held in piece by stort pled
around the abdomen. ©

ee hy Mh) ae eT kis! SC ee EE

seme

os
pian ie Aas al


{ho Ala, 19 SOUTHIMRN REPORTH

On this anpeal, a reversal is soucht on

er is wi Nay classified as (fan
attack on the procedure whereby the jury
was impan lel é and selected; (II) an attack

on the sufficiency of ve evidence on which

> conviction as and C114)

an at : es relating to the
I the rulings of

i larges, and on other
matters course of the trial.
fi,2i re ed me Ws court was

errul
venire,.. The a Baced upon a
S. fo appears that the

June 26, 1943, for
during the week
me of the trial. It
of the term is the
and since the new
t Monday
urt in
26tt h is void.
nce 8 | 196 et seq., litle
h apply to Jefferson
ibe the ti

& rOUne

ET
4
=
i :
:
c ‘ ~CSe

the sos juries for the
trial of the case, and shall
t draw j rom the jury box
4 ote 9?

4

940. §

d to supra, has no a
Sounty, because a spe

1as been provided for Tef i

*

» and a de
lonv Cas:

2d SWRI

[3,4] Besides, § 46, Title 30, Code of
IM40, provides as follows: “No objection
can be taken to any venire of jurors ex-
cept for fraud in Graing or summoning
the jurors.” The ver
going section is to prevent
venires for mere j
for the sake of
an irregularity
Wimbush vy. ptate
145.. No. frauc
the statute, wl
controversy
65°90. Se

se. of the for

— &

? bs
21, 68 So. 57; ee mer ¥. State 206 Al.
00 Cc r¢ :
89 So. 69; Wimbush v. State supra,

An examination of ee record clearly
shows that the Prog cee
moning and impas
Redute: provided SO nty
in § 196 et seq., Title 62, 1940, It
iS ins anes on ut the se Rei are tncon-

lure followed in sum-

r
nK

sum ee and es,
ren eral lay

cls

i Hi)
oP ey en ¢ +
Ps) 4 “
4 H 24 Yee ¢ .
aX. Vda ci Walk 4 1 AiG ft
¥ 4
y tan » ,
A aay \ {
L112 Ss aia HA ey
> x +, |
ae 5 41lG 1}
sh en ~ qty
IS Oy A i VX \ rh
4 a
PP asp Fy . ¢
one Gay 1. UR OS Sias Bs i

of trial. We shall ss Seed to an examina
tion of the questions :
the oca jury law of

unconstitutional and void,
to nee the venire should is

ed and it would be no ta
to rely on § 46, Title 30,

say that no fraud was

Tis tiered that’ § 196 et seq., Title
Code of 1940,
these sections
cab ee ay to J

con
and
be
sari tl
WII
CTric
DELe
tion
Ti I¢
Cc
tion
Ul l,
Whe
now
CAT
popes
4

yP,
*y

~ )
re) ?


oly ae onan
Sas CR aad

BURNS vy. STATE Ba OS Ala,  ‘4k9
: : 19 So.2d 450 :
y T ® Code of complied with. This position is incorrect was adopted in its entirety by the Act’ of
VS: 0 objection : and not in keeping with our decisions, the Legislature approved July 2, 1940. Of

onire..of* jurors ex-
ing or summoning
uirpose. of the fore-
ont the quashing of
ularities, assuming
‘nt that there was

present instance,

“In answer to your first inquiry, we agree Course, if the Act of July 2;°1940, was a
with you that the Act passed over the Gov- local act, compliance with § 106 of the Con-
emor’s veto May 26, 1931, to which you Stitution was necessary.’ In determining
refer in that inquiry is a local act under sec- Whether the act is local or general so far
tion 110, ‘Constitution, since it is a desig- .aS it relates to § 106 of the Constitution,
nation of Mobile in substance as the only the act must be considered as a whole and

city to’ which it may ever apply, and ig not in parteiidy will not be considered as ;
Ala. 153, 186 So. therefore subject to section 106, Constitu- part local, r equiring notice, and the balance :
ee a ny tion, if it is not included in section 104(18). as general, requiring no notice, : 3
eee nie : Whether it violates section 104(18) ig not“ * x x Of course, if the act of 1921 is
Emtate, 191 Ai ame : now considered. Mobile County v. State local, the requirements of section,106, Con-
fee. ea 56. ex rel. Cammack, 240 Ala. 37, 197 So. 6. stitution, must have been complied with.
Fete supra, ee “The provisions of this Act to the ex- “The question in that respect relates to
ag tent that they appear in the Code of 1940, the act as a whole, and not to a part. It
he record clearly ; Title. 62,. section 461, are made effectual is either a local act, or a general act, i
: followed in ‘sum- | by the adoption of the Code as of May 31, It cannot be divided ‘so that a part will a
he jury isthe pro- LOGE. ROR Stage Baumhauer, 244 be local and a part general requiring no-
t Jefferson County Ala, 1, 12 So,2d 326, 329. tice as to a part, and none as to the bal-
Code of 1940, . It In response to the question as to whether ance, | * °& Cae Ding iy’ Hamilton, 230
Ptons are, tincon- |"). § 106 of the Constitution Should be fol- Ala. 310, 312, 313, 160 So, 708, 710.
that this being $9 lowed in amending the statutes which con- [6] We think it is plain that when the
sto have the jury stitute Title 62 of the Code of 1940, the act was passed by the Legislature, adopt-
a ee ee ae Justices of this court gave the opinion that ing the Code of 1940 in its entirety, a
‘Seperate in order to make such amendment it is nec- general law was enacted. The Code ‘of
td a4 Sms ie: mary to comply with § 106 of the State 1940 contains sixty-two Titles, each Title
BS Ghich he ie Constitution because these statutes consti- being comprised of Many sections. Only
li ei e right tute local law. oie _ one Title, which jg Title 62, contains local
awe ithe ju But in order that there might be no mis- law, and that law, as. originally enacted,
‘Aarendant’rany construction: of. this opinion, the Justices was general law with local application

to strike two i) further, saids; “This court has held that (Publishers? Forward, Vol. 1, Code of
2 SUPIKS be © to y

Several of the constitutional requirements 1940).

for, and the righ touching the enactment of a law do not ob- at ou:

Stal venire served : : : F [7] But it is argued that this construc-
: ragae fain as tothe codification of public stat- .. : : :

y beiore the day es : tion will allow the Legislature té avoid the

: eek utes under. the Constitution, Art. 4, § 85, : eee:

d@'to an examina- Gibson v, State, 214 Ala 38 43, 106 So, Teduirements of § 106 of the Constitution

Qived, because if eat : Pkt, * by enacting laws of which those who. are

231; Ex parte Thomas, 113 Ala. 1, 21 So,
369, . That is, the incorporation of acts in-
I ti Me sig cy :
have been grant- : ie eee ee fei by ae the nature of a Code and in the present sit-
wer for the State be ie have ee eee din cori a : ig uation, fails to consider that these statutes
Pode of 1940, and af may, i Binal ene, pertaining to the jury system of Jefferson
actment, Bluthenthal & Bickert vy. Trager . Bat es
& Co, et ali, 131 Ala, 630 31 So: 622; State County, as pointed out above, were valid
W F Cldey . , . ’ if ull ; : ia ein ral
ex rel. Sossaman. y. Stone, 235 Ala. 233, ee a auly Passed, | bei By Scie acts

ferson County is

interested will have no notice, by the device
then the motion

of adopting a Code. This idea overlooks

eged in drawing

‘et Seq., Title 62, 178 So. 18; State v. Stone, 236 Ala. 82 ee ionipgeee area res 1 |
local law, since SI So, 281; Dillon v, Hamilton, 230 Ala, they affecte y. he |
sth: aa . ane nd #¢ts as originally enacted, with few changes,

sly made appl» 10, 313, 160 So, 708; State ex rel. Hyland are the same as the sections in the Code

hin tay, Dhese sec- v, Baumhauer,., Ala.App., 12 So.2d 340; of 1940. From a practical standpoint; there .

acts which were Brandon, v.: State, 233 Ala. I, 4, 173 So, eine no ‘break in’ the continuity of the leur ’
pplication (Acts 238.” In re Opinion. of the Justices, 244 7° : a

255; Acts 1932, Ala. 384, 13 So.2d 762, 764, Con ire that the purpose of § 106 of the

_ Constitution is the Prevention of deception 1 ;
[5]. In view of the earnest insistence of those immediately affected by the local el i
of counsel, it is fair to consider the rea- legislation to the end that they may have an

b, p. 1010; Acts
is is a correct
arnestly insisted

oC. : soning which supports the foregoing state- opportunity to protest against the propased ie i
‘1S unconstitu- ment by the Justices; which cites the deci- enactment. Gray y,. Johnson, 235 Ala. 405, a f
Hts adoption in sion quoted supra.’, Title 62, and especially 179 So, 221, 223. And. this court has said i
pisiature, the re- sub, 5 of Title 62 (§ 196 et seq.), is but a that “while the requirements of sections 45

pate Constity, part of the Code of 1940. The Code of 1940 and 106 of the Constitution are not identi:

a not

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“ALABAMA

436 87 SOUTHERN RWPORTER,

tol and shot him, from the effects of which
Richardson died the next day. During the
examination of one G. R. Wheaton, who was
one of the witnesses for the state, and who

had testified to the facts as above stated, he

was shown a letter, which was addressed to
the father of the defendant, and asked if he
(the witness) wrote said letter. The witness
replied that he did not, and denied that the
signature to the letter was his.
was signed “G. R. Wheaton,” and was ad-
dressed to “L. P. Burton.” Defendant, as a
witness in his own behalf, testified that he
did not shoot Richardson until the latter put
his hand into his pocket, as if to draw his
pistol. The defendant introduced his father,
L. P. Burton, as a witness, who testified to
having received the letter addressed to him,
which was signed “G. R. Wheaton,” and in
which the proposition was made that, if he
would send a certain amount of money to the
writer, he could get a number of the witness-
es against the defendant to leave the state.
Upon the defendant’s offer to introduce in
evidence said letter for the purpose of im-
peaching the witness Wheaton, the state ob-
jected upon the ground that it was: not shown
that Wheaton wrote the letter, or was the
author of the same. The court sustained the
objection. To this ruling the defendant duly
excepted. The defendant requested the court
to give to the jury each of the following writ-
ten charges, and separately excepted to the
court’s refusal to give each of said charges
as asked: ‘(1) The court charges the jury
that if they have any reasonable doubt of
material facts they must acquit. (2) Self-
defense is simply the resistance of force, or
seriously threatened force, actually impend-
ing, by force sufficient to repel the danger,
aud no more. (8) I charge you, gentlemen
of the jury, that to justify the taking of life
the danger need not be real, but it is suffi-
cient if it appears to a reasonable mind to en-
danger life or limb.”

Massey Wilson, Atty. Gen., for the State.

SHARPE, J. The indictment was in the
Code form. It was not subject to the objec-
tions taken by demurrer, and was sufficient.

Wheaton having testified that he did not
write or sign the letter purporting to have
been addressed by him to P. J. Burton, and
there having been a total lack of evidence to
show this writing was in response to any let-
ter sent to Wheaton, or to otherwise prove its
genuineness, the purported letter was not
admissible for the purpose of impeaching
Wheaton or for any purpose. O'°Connor Min-
ing Co. v. Dickson, 112 Ala. 804, 20 South.
413;. Ilightower v. Ogletree, 114 Ala. 94, 21
South. 934.

A reasonable doubt of material facts, with-
out regard to whether they were facts essen-
tial to the establishment of defendant’s guilt,
would not have required an acquittal, and

The letter ,

(Ala,

the contrary of this was implied in the first
refused charge. |

Taken as a whole, the evidence leads to the
legal conclusion that defendant was the ag-
gressor in the difliculty, and, this being true,
the defendant was not entitled to invoke the
doctrine of self-defense. Lewis v. State, 51
Ala. 1; Wills v. State, 73 Ala. 362. For this
reason, besides others that could well be
based on faults inherent in the second and
third refused charges, the court was justified
in refusing each of those charges.

We find no error in the record, and there-
fore the judgment will be affirmed.

—_—

(141 Ala. 300)
GIBBONEY et al. v. R. W. WAYNE & CO.
(Supreme Court of Alabama. July 21, 1904.)

CONTRACT OF SALE—ACTION FOR PART PERFORM-

ANCE—RECOUPMENT.

1. In the absence of a stipulation to the con-
trary, one who voluntarily accepts and retains
goods sold to him and delivered in part perform-
ance of a contract is obliged to pay for such
goods, and cannot set up a breach of the con-
tract in bar of the suit.

2. Where the damages sought to be recouped
are averred as having been sustained not by
defendants, but by their alleged principals, who
are strangers to the action, the plea of recoup-
ment is subject to demurrer.

Appeal from Circuit Court, Mobile County;
Win. S. Anderson, Judge.

Action by James Gibboney and others
against R. W. Wayne & Co. Plaintiffs had
judgment, and defendants appeal. Aflirmed.

This action was brought, by the appellees
against the appellants to recover the price
of eertain ecross-ties delivered by the plain-
tiffs to the defendants and accepted by
them. The complaint as originally filed con-
tained two counts. The first count contained
the usual allegations under the common
counts for an amount due upon an account,
and for goods, wares, and merchandise sold
to the defendants... The second count set out
the contract, which was made by virtue of a
proposition made by plaintiffs to the defend-
ants to supply them not less than 3,000 cross-
ties of certain dimensions at 85 cents apiece,
agreeing to deliver the same alongside a ves-
sel at Mobile not later than June 4, 1900,
and the acceptance of said proposition by the
defendants on May 26, 1900. The second
count, after setting out said proposition and
its acceptance, then averred that the plain-
tiffs delivered, and the defendants accept-
ed and received, 1,856 of said ties, which
they had refused to pay for. A demurrer to
the seecoud count of the complaint was sus-
tained.

To the first count the defendants pleaded
the general issue and several special pleas.
The second, third, fourth, and tenth special
pleas were in words and figures as follows:

{ 2. See Set-Off and Counterclaim, vol. 43, Cent.
Dig. §§$ 77, 101, 103.

DS a

seg 0-8

;
4


ihc IRE EIS AE

lis 4 oe VARMA a ae had oN

“469 Ala

under’ §. 425, § 426. or’ 8 428, there was “Mr. Alford;

no error in overruling ein
[16] |The jrefusal of the trial court to

« suspend the trial and submit to a jury an

inquisition, as, to. defendant’s insanity" at
the time of the trial under the provisions
of § 426 is a matter of discretion and. is
not. reviewable. on appeal in the absence of
abuse of discretion...Granberry v. State,
184. Ala. 5, 63 So, .975;, Rohn v. State,
186. Ala. 5,.65.So, 42; Whitfield v. State,
236 Ala, 312, 182 So. 42.

§ 425 is not mandatory. Refusal to stay
murder Prosecution | inorder to appoint
a commission or the superintendent of the
state hospital for. Jnsane to examine ac-
cused and: ‘Feport his mental condition, is
not error. ' § 425, Title 5, Code of 1940
(Gen.Acts 1933,’ Ex.Sess., p. 144) is not
mandatory but leaves stich matters to the
discretion of the court. Oliver v. State,
232 Ala. 5,166: So. 615; ‘Gast v. State,
232 Ala. 307, 167: So. 5542"

[17] “The following conversation took
place between the court and counsel for
«the defendant in’ the presence of the jury:

©The Court: Mr. Alford, call another
witness, if you have got one, please, sit,
and let us go ahead with this case.

“Mr. Alford: I haye no other withess,

The Courts, Are you going to put the
defendant on?:

eMr, Alford:) No, sir} not yet, not: un-+
til I have finished with all my testimony.
~The Court: I have got something to
gay about that: am not going to sit here
and waste time: Have you got any other
witness available? “Tf Atle have, let us (£0
ahead. ' e 3 Ty

“eye AW Hor? se have’ ‘no other witness
except’ Mrs. Morfison and ‘the city jail
records, is. all Ba have, and then I will elect
whether to put the defendant on the stand
at that particular’ time, or not, as soon
as I get through with them.
“The Court: You cannot tell? You
tell me, as an officer of the court, that you
don’t know whether you—until you have
examined those records down there, wheth-
er you want to put the defendant on? —

19 SOUTHERN REPORTE] R;:2d SuRIES

‘If Your Honor. please, 1
would like not to have to discuss. the mat-

ter of this type in the sPRRRENCE or pearing
of the jury, Leh

“ “The Courts! Let) ities jarys go out ete,

I want to proceed with the case. I don’t

want to unnecessarily. delay it: I want to
give you every chance in the world,
“Mr. Alford: I realize thar”?

The jury then retired, 990) 0) Bri

No objection or exception ‘was made to
the remarks of the court which were ob-
viously made for the: purpose of expediting
the trial. Furthermore, at defendant’s
request the following written charge was
given by the court: “5. I charge’ you,
Gentlemen of the Jury, that no inference
or conclusion should ‘be drawn by the jury
from the fact that the deferidant’ was not
sworn and put on the stand as a witness

in his own behalf; not should ‘this ‘fact ~

have any weigay with the: sary in peaching
a verdict.” te Lao aay

There was no error in this regard

[18] It is urged that, the, auurk cwas in
error in overruling ‘the motion, for anew
trial on the ground. that the defendant was
not present when some of the jurors were’
excused by the court. This ruling was not
error. Stewart v State, supra; Dixon v.
State, 27 Ala.App, 64, 167: So. “340, cert
det: 232. Ala. 150; 167. 56, 349; Green. v,
State, 233° Ala. 349, 171 So, 6433 (Dyer v.
State, 241 Ala. 679, 4 So. 2d 311.

[19] Over the objections: of ercneh
the State was allowed, after the:defendant
had rested his case; to: introduce evidence
not in rebuttal. This is a matter of dis+
cretion with the trial’ court and is not re-
versible error. ‘Pressley v. State, 1166, Ala.
17°20;.'52" Sox 3304: sda is v. eter de 143
Ala: 28, 38 So. 919, - te

‘We have not. ‘only discussed the. ques-

tions raised by counsel, but have examined :

the record with great care, and finding no
error, the’ judgment of the lower court: is
affirmed,” |.’

Affirmed, —

All the Justices concur.

ga

—a -

Le

SE eee ee


her she
ou his
gay. nothing.
writing which
wore. defend-
ell in jail to
jail, the writ-
ing, his. head
ak. “The par
évidence, un-
ompetent and:

timony,”.. : :
ler written, by
“for publicity
rocured,. from
t that defend-
y night, Jan-

¥ Crime 7"
ling to. show
ant, were seen
aturday night
y about 6 or
‘on .Avenue F

Birmingham,
the Alling sta-
4 were, inthe
the defendant
ahi sntion
AUS ndant

Ihe negro help~’.

Water into the
Was ‘a Franklin

moon the gas.

3 Pak AN ORS
Ree Ae Shin, sei
BiG OC iad
ones
* joys * my PS
ate Ly Ren7c5

estihed without .

ear, pass «about
ay..night before
ng toward. the
‘recognized: the
e; that she had
times before;
ise that was dil-
ad heard on the
e., Lottie Bur-
idden in the. car
its. sound;. that
is ‘particular car
¢ Prescott disap-
like an airplane

he sound of any’

ard. Mrs, Betty
drbin and Jean
e effect. All. of
that. they were

PR ae Te a A cea ad a

Bh PARES REE LALLA

pipe siee ts BURN WE STATE: (2 7OR BES 28% ce dle BBO
, 19 So0.2d 450 .

familiar with and knew the car. Some of
this testimony was based on recognition of
thecar by: sound alone. This testimony
was competent. ae
"Jt has been properly held, for example,
that. a witness may testify to a person’s
identity from voice alone.” Wigmore (3d
Ed.), Section 660. 2 uve

The author cites in Note 1 to this sec-
tion many English and American cases
so holding, Our.own court has so held in
Orr v. State, 225 Ala, 642, 144 So. 867.

In this case it was held that it was proper
to permit, the, witness, to state that, in her
best judgment, the defendant's voice was
the same voice she heard talking: in her
house on the night of October 20th (the
night the rape was committed). a

“So,,,too,- chattels..may be identified by
their . appearance* and » other qualities.”

Wigmore (3d Ed), Section 660.

The author “cites in’ Note 6 many’ au-
thorities. One of the cases is State’ v.
Rainsbarger, 74 Iowa 196, 37 N.W. 153; in
which a witness. was permitted to identify
a buggy by its rattle: Another case cited
ig Commonwealth v. Best, 180 Mass. 492,
62 NE, 748, in which the identification of
« wagon by its ‘rattle was allowed. oe

And in Lancaster v. State, 21 Ala. App.
140, 106. So, 609,615. (cert. den. 214 Ala.
2, 106 So. 617 and. 214 Ala. 76, 106 So.
618) our Court of. Appeals, held. that no
error. was committed in permitting the
witness Avery, shown to have been an ex-
pert automobile: mechanic and familiar
with automobiles, to testify to the identity
of a certain Buick. car by the sound of
ss exhaust... The witness testified he knew
this particular Buick car, knew the pecu-
liarity of the exhaust. from its engine, and
then gave it; as, his best judgment that the
car passing a certain point on the road
was this car. Said the court: “Judgment
ag to identity may be formed through and
by any of the senses, of seeing, hearing,
feeling, smelling, or tasting, if the test
is such as to impress the mind as’ to the
identity of the thing testified about.”

5 Ge ye preparation |,.2 4,004 i

The testimony of the witness, Jacob
Krantz, tended to show that the defendant
bought the hatchet, which was later found
in Prescott’s body, from the witness Krantz
during the week before Christmas week.
There was evidence tending to show. iden-
fcation of the hatchet by the witness by
a corner broken off the blade of it and

the cost mark. The withess swore he had

known defendant since 1923. or 1924.»

Use of Defendant's: Hatchet: and Car in
Perpetration’ of the Crime

"There was evidence tending to show that.

defendant’s hatchet was used in the per-
petration of the crime.’ ‘Also,’ as~ shown
above, there was testimony by five’ wit:
nesses tending to place defendant’s car at
the scene of the crime. There was also
evidence tending to show that ‘blood was
later found on the rear axle housing of

thevcar., oo6Fon, CGR ae

Destruction of 'Defendant’s. Automobile

There was evidence. tending to show de;
fendant’s presence at Gate City, ag shown
by the bus driver, on the Monday. night
after Prescott disappeared... There was
evidence tending. to show that defendant
reported, to the police, that his car was

stolen on Thursday or Friday before the
murder was committed, on Saturday night.
And there was evidence tending to show
that this claim was false. 9) °° 1"

_f4, 15] The corroborating : evidence.

speaks for itself, Testimony , tending. to
show motive was competent when taken
in connection. with. the other evidence,
Slayton v. State, 234 Ala. 1, 173, So. 642.
There was no error in overtuling the mo-
tion to exclude’ the testimony’ of Charlie
Odiorne and in refusing the affirmative

charge requested by: the ‘defendant..: Ross _

v. State, 74 Ala: 532; !Malachi v. State,
89 Ala. :134,.141,; 8, So: 104, ,106;; Read: v.
State, 195 Ala. 671, 71 (So. 96;,. English
v. ‘State,. 14 Ala.App. 636, 12 B05; 2985
Hargett \v.. State, 18, Ala,App.: 616, .93 So,
207: Cheatwood'v. State, 22 Ala.App. 165,
113 So. 482; Tidwell v. State, 23 Ala.App.
409, 126 So. 186;, Newsum v. State, 10 Ala.
App. 124, 65 So. 87; Gilbert 'y.. State, 18
Ala.App. 393, 92: So. 522; Smith. v. State,
230 Ala. 413, 161 So. 538;. Berry v. State,
231 Ala, 437, 165 So. 97; Skumro v. State,
234. Ala. 4, 170 So. 776; Bailey v. State,
30 Ala,App. 374, 8, So.2d 202, cert. den.
242 Ala. 673, 8 So.2d DORs ee san an
Ill. After the motion. to quash ., the
venire was overruled, defendant's, counsel
filed a petition or motion setting out that
defendant was insane at that time and
asking the court to make an order for the
removal of defendant to, Bryce Hospital
for observation and. examination. De-
fendant’s counsel states in the petition
that it is filed under Title 15, § 428, Code
of 1940. Whether the motion ‘was filed

PASEO LIF

:
4
{
HH
t
ai)
;

:

4

:

ee ee ee ee ae ee

(Ala.

eged
un, to
own in
the evi-
he true
ssment
sted by
ate val-
n fixed
found
that so
fix and
the tax
‘thstand-
und on
imed by
valuation
ral from
ened up
_vinal in-
. ythat tri-
nd duty
‘he same
the com-

n at the
in that

t or real
the sug-

er in the

( regard
inission-
the com-
returned
facie

co lay

of of cir-
upon the
ihe court,
respect of
ratit was
on appeal
not only

30 greater
smissionuer
court, and
wr the cir-
x the fair
ty accord-
before it.
the com-
reuit court
aw 3s of that
is it any
idgment of
valuation
rod in the
and fixed.
h inerease
a tribunal
uty to find
tion if the
‘ir market

stion made
was want-
it. There
and return-
_wholly

goes

é

.

BURTON, Andrew, black, hanged Anniston, Alabama, 9-%=190l,

Ala.) BURTON v. STATE, 435

unlike those which arise in respect of prop-
erty which has not been returned by the
owner nor listed for taxation by the asscss-
or, and of which the back-tax commissioner
ig authorized and required to make assess-
nent,

There was evidence to the effect that the
lands under inquiry were in the Cahaba Val-
ley coal fields, and that they were of the same
kind and quality as the lands in those fields.
This evidence offered a predicate for the tes-
timony which was received as to the prices
at which other lands there had been sold
during or near to the time covered by the
assessment. 1 Greenleaf on Lvidence, § 1,
p. O13. LAddey. Ladd, 121 Ala. 585, HS6, 25
South. 627; Alabama Mineral Land Coi-
pany v. Commissioners of Perry County, 95
Ala. 105, 10 South. 550. But evidence of a
mere offer to buy similar adjacent lands at
a given price should not have been received
to show the value of these lands, This was
no more than to show that the witness was
at the time of the offer willing to give the
stated sum for the property. and stands
upon a footing analogous to that of an offer
to prove that 4 person intended to bid a cer-
tain amount for the property the value of
which was in issue, which was held to he
inadmissible in Ladd v. Ladd, supra. The
offer is upon a lower plane as evidence of the
would-be purchaser’s estimate of value than
actual payment by him for obvious reasons,
and many considerations having no bearing
upon the market value might have con-
duced to the owner’s rejection of it; and to
receive such evidence in any case of this
sort may well lead to collateral inquiries
and confusion of issues.

Courts do not know what relation a given
royalty In the lease of coal lands bears to the
yalue of such lands, No evidence was ad-
duced going to show that coal lands of a
lense value of five cents per ton of mineral
coal was of a certain market value in fee. The
circuit court erred, therefore, in receiving
the evidence of the witness Griffin that he
bad leased lands in the vicinity, and of like
quality as those involved here, for five cents
per ton royalty; and his further testimony
that, as a part of this lease contract, he was
given the option to purchase the lands at
$20 per acre, was also irrelevant to the
question at issue, A mere option to pur-
chase—certainly one thus connected with
a lease—is not competent in evidence upon
the inquiry as to the market sale value of
similar lands in the same vicinity. In -re-
ceiving evidence of the offer to which we
have referred, and of the lease, royalty, and
option testified to by Griflin, the circuit
court erred. The fact that the bill of ex-
ceptions does not purport to set out all the
evidence cannot open the way for an as-
sumption on our part that there was other

evidence which rendered this admissible.
These errors appearing by what the bill of

exceptions does show, they must operate to
reverse the judgment, in the absence of any-
thing else in the record to put a different
phase on the rulings inherently, or to show
that they did not prejudice the appellant.
Reversed and remanded.

—

(141 Ala. 32)
BURTON vy. STATE.

(Supreme Court of Alabama. July 21, 1904.)
CRIMINAL LAW—IIOMICIDE—INDICTMENT—WIT-
NESSES—IMPEACIIMENT—INSTBUC-
TIONS—SELF- DEFENSE.

1. An indictment alleging that before the filing
thereof defendant unlawfully and with malice
aforethought killed RK. by shooting him with a
pistol, ete, was not demurrable for failure to
allege the time when and the place where the
homicide took place, and that defendant com-
mitted the erime within the jurisdiction of the
court in which the indictment was returned.
2 Where a witness testified that he did not
write or sign a letter purporting to have been
addressed by him to another, and there was no
evidence to show the genuineness of the pur-
ported letter, or that it was received in response
tom letter sent to witness, it was inadinissible

to #mpeach the witness.

3. In a prosecution for homicide, an instruc-

n that if the jury have any reasonable doubt

material faets they must acquit, without, re-

yd to whether they were facts essential to
he establishinent of defendant’s guilt, was
properly refused.

4. Where, in a prosecution for homicide, the

idence leads to a legal conelusion that defend:

tt was the aggressor in the difficulty, be was
not entitled to invoke the doctrine of self-
defense, and henee requested instructions on
such subject were properly refused.

Appeal from City Court of Anniston; Thos.
W. Coleman, Jr., Judge.

Andrew Burton was convicted of murder,
and he appeals. Affirmed.

The indictment under which the defendant
was convicted in the first degree and sen-
tenced to be hanged was in the following
words: “The grand jury of said county
charge that before the finding of this indict-
me...i that Andrew Burton unlawfully, and
with malice aforethought, killed Will Rich-
ardson, alias William Richardson, by shoot-
ing him with a pistol, against the peace and
dignity of the state of Alabama.” The de
fendant demurred to this indictment upop
the grounds that it failed to allege the time
when and the place where the homicide tool
place, and failed to allege that the defendant
committed the crime within the jurisdiction
of the city court of Anniston. This demuc-
rer was overruled. On the trial of the case
the witnesses for the state testified that the
defendant and William Richardson, the de-
censed, got into a quarrel by the defendant
demanding of Richardson that he pay him
5) cents that he claimed Richardson owed
him; that Richardson said be had paid him,
but would pay him again, and thereupon
handed him 50 cents; that the defendant
then cursed bim, and told him he was a liac

if be said he paid him, and pulled out his pis-

os
en a

ae

ee

petri ate eS ee Or
Se nee


716

cepted as sufficient. The statute does not
prescribe the manner in which the request
must be brought to the knowledge of the
mortgagee or the transferee of the mortgage
debt. Personal notice, by which is intend-
ed the delivery of the writing to the mort-
gagee or the transferee of the mortgage debt
“in person, is most usual in practice, and,
when practicable, should be adopted. If an-
other mode is pursued,—if the request be left
with an agent, or one supposed to be the
agent, or at the usual abode or place of busi-
ness, of the party to be affected,—tracing
the fact to the knowledge or the writing to
the possession of the party is the equivalent
of a personal delivery. Wade, Notice, § 640;
2 Tayl. Landl. & Ten. § 484. The evidence
that the defendant was informed of the deliv-
ery of the papers at his place of business,
and that one of them was a notice to enter
the partial payments on the record of the
mortgage, was not subject to objection. It
was not, as seems to have been supposed, nor
could it have been, intended as evidence of a
verbal request. It tended to show that the
defendant accepted as sufficient the delivery
of the notice at his usual place of business,
and to raise an inference that the papers
came to his knowledge or possession.

4, The burden of proving the fact that, in
obedience to the request, the partial pay-
ments had been entered on the record of the
mortgage, rested on the defendant. It was a
fact lying peculiarly within his knowledge;
and, as a general rule, when a fact is pecul-
iarly within the knowledge of a party the
burden rests upon him to prove such fact.
1 Whart. Ev. § 367; 1 Brick. Dig. p. 869, §§
922, 923. The defendant not having given
evidence that the payments had been enter-
ed, the evidence of witnesses tending to neg-
ative the fact was merely redundant or su-
perfluous, and, if illegal, its admission is
error without injury. 1 Brick. Dig. p. 887,
§ 1192.

5. We cannot perceive that the instruction
given the jury at the request of the plaintiff
is in any respect erroneous. The instruc-
tions requested by the defendant were prop-
erly refused. The first (the charge to find
for the defendant), if the evidence was be-
lieved, is never proper when there is a ma-
terial conflict in the evidence. The second,
when read in connection with the evidence,
would have authorized a finding for the de-
fondant, though his failure to receive the
notice was the default of his clerk, Broadnax,

We find no error Jn the record, and the
judgment must be ailirmed,

MORGAN v. FLIEXNER et al.
(Supreme Court of Alabama. Dec. 19, 1894.)
APPEALABLE JUDGMENT.

Where, on motion, a direction by the
judge to the clerk as to the judginent to be en-
tered is entered on the docket, it does not consti-
tute a judgment from which the appeal will lie.

SOUTHERN REPORTER, Vol. 16.

(Ala.

Appeal from circuit court, Butler county;
John P. Hubbard, Judge.

Action by Flexner & Lichten against A. L.
Morgan. Plaintiffs had judgment, and from
an order overruling defendant’s motion to va-
cate the judgment, and quash a writ of ven-
ditioni exponas issucd thereon, defendant ap-
peals. Appeal dismissed.

J. M. Whitehead, for appellant. J. C. Rich-
ardson, for appellee. —

MecGLELLAN, J. Motions were made by
A. L. Morgan in the circuit court to set aside
a judgment rendered some years previously
in that court, on the ground that said judg-
ment was void, and also to quash and set
aside a venditioni exponas issued upon said
alleged void judgment a short time before .
the motions were made. At the end of these
motions as copied into the transcript is the
following: ‘“(16) Refused, and movant ex-
cepts, and is given 40 days from adjournment
of court to present bill of exceptions. Hub-
bard, Judge.” This entry, obviously copied
from the trial docket, is assumed by the ap-
pelHant to be a judgment of the court over-
ruling and denying their motions, and from
it, as such, this appeal is prosecuted. But it
is not a judgment, but only a docket memo-
randum of the presiding judge, intended
and operating merely as a direction to the
clerk as to what judgment should be entered
on the records of the court. It may never
have been acted on by the clerk, and will
not support an appeal or an assignment of
error. Baker y. Swift, 87 Ala. 530, 6 South.
153; Park vy. Lide, 90 Ala. 246, 7 South. 805.
The motion to dismiss the appeal must there-
fore prevail.

/ D r. a3 3 [
BYERS v. STATE.
(Supreme Court of Alabama. Dec. 20, 1894.)

PROSECUTION FOR HomicipE—EVIDENCE—CHANGB
oF VENUE—LOCAL PREJUDICE —TIME OF APPLI-
CATION — SUFFICIENCY — IMPEACHMENT OF DE-
FENDANT—SUMMONING JUROR.

1. Under Code, § 4485, providing that appli-
cations for change of venue shall be made as
early “as practicable’ before the trial, or may,
be made after conviction, on a new trial being
granted, it is not error to refuse an application
not made until the case is first called regularly
for trial, two mouths after the arraignment,
when no excuse is given for not having made
the application earlier. ‘

2 Where the affidavits: filed in support of
an application for a change of venue, on ae-
count of strong fecling agninst defendant, do not
sinte the facts on whieh atliants base their opin:
ion that defendant cannot receive a fair trial
in the county, and there was no particular troue
ble in securing a jury, the denial of the applica-
tion is not ground for reversal, though no coun-
ter aflidavits were filed.

8. Where a juror who has been mercly ex-
amined and found competent, and who is al-
lowed by the court to go while talesmen are
being summoned, fails to appear again, the
court may complete the jury without reference
to lim.

4, Evidence of the “general character” of
a defendant, who testifies in his own behalf, is
admissible to impeach him.



718 SOUTHERN REPORTER, VoL 16. | (Ala,

cards, and showed each other some tricks
they knew, and some offers to bet were
made during the day among others; but
that he did not bet or offer to bet with de-
ceased, but once, and that was a short while
after they met when he won three dollars
from deceased on a trick, and that he then
offered to return the money. On cross-ex-
amination defendant said he did not know
whether he asked Oscar White to go in with
him and work a trick on deceased and win
his money. The witnesses Watkins and
Smithson, testifying for the defendant, cor-
roborated him in the main details as to his
whereabouts between 6:30 and 9 o’clock.

The rulings of the court upon the motions
for a change of venue and to quash the
venire are sufficiently shown in the opinion,
as are also the rulings of the court upon the
evidence, which are reviewed on this ap-
peal. Upon the introduction of all the evi-
dence the defendant requested the court to
give the following written charges, and sep-
arately excepted to the court’s refusal to
give each of them as asked: (1) “It is your
duty to reconcile all the testimony if you
can, so as to make all the witnesses speak
the truth, and if you cannot reconcile all the
testimony, then you may reject what you
believe to be untrue. But you cannot reject
the testimony of any witness capriciously,
and if, on considering all the testimony,
you still remain in doubt as to the truth or
falsity of any material fact, you must give
the defendant the benefit of the doubt, and
acquit him.” (2) “Gentlemen, if the evi-
dence leaves you in any doubt as to wheth-
er the defendant was present at the killing
of the deceased, you must find the defend-
ant not guilty.” /

Greene & Montgomery, for appellant. W.
C. Fitts, Atty. Gen., and J. J. Attman, for
the State.

HARALSON, J. 1. In an application for a
change of venue in a criminal case, the stat-
ute (Code, § 4485) requires the defendant, to
state in his application to the court, “specif-
ically, the reason why he can not have a fair
and impartial trial in the county in which
the indictment is found, * * * and [it]
-must be made as early as practicable before
the trial, or may be made after conviction,
on a new trial being granted, and the refusal
of such application may, after final judg-
ment, be reviewed and revised on appeal.”

The word “trial,” as employed in the statute,
‘means, as has been elsewhere held, ‘the in-
vestigation of a matter In Issue between op-
posing parties before a tribunal competent
to decide upon it’; and that “in a criminal
case the term does not include the arraign-
ment, or any other merely preparatory pro-
ceeding which may be taken prior to the time
of administering the requisite oath to the
/jury.” Hunnel v. State, 86 Ind. 434; U.S.

14,905; Price v. State, 8 Gill, 297; Rap. Crim.
Proc. § 159. When the statute uses the term,
“as early as practicable before the trial,”
without more, it would mean, that unless the
application is made before the trial is en-
tered upon, and as early theretofore as prac-
ticable, the right is waived; but, that provi-
sion is followed by the other,—“or it may be
made after conviction, on a new trial being
granted.” Construing both provisions to-
gether, it would seem, that the defendant is
not cut off, absolutely, from making the mo-
tion, if not done before the trial begins, but,
that he must do so “if practicable,’—that is
to say, if before the trial, he had been aware .
of the facts upon which he bases his appli-
cation, and has had time and opportunity to
present them to the court, he must have done
so. If he fail to make application before
the trial, having had the opportunity, it is
incumbent on him, to show sufficient excuse
for the delay. 3 Am. & Eng. Ene. Law, 102,
§ 5, and authorities cited. It may appear

after a trial, and may not have existed be-
fore, in which case, on a new trial being
granted, by requirement of the statute, the

made before the trial. All this suggests, that
such applications should, for obviously good
reasons, be made without unnecessary delay,
—as soon as practicable, without doing vio-
lence to right, and always on meritorious
grounds; or, for failure, in either case, it will
be denied. This application was made when
the case was first called regularly for trial.
“Immediately [as the bill of exceptions
states] before any announcements were made,
or any witnesses called, the defendant pre-
sented a motion for a change of venue.” The
indictment, found at the January term of the
criminal court, 1894, was filed in court on the
27th day of January; and at that term,—on
the 2d of March, 1894,—the defendant was
arraigned in open court, his counsel being
present, and pleaded not guilty. At the same
time, the cause was set down for trial, on
Monday, the 9th day of April, thereafter,
which was a day within the next succeeding
April term of said court, and on that day,
after some preliminary steps, looking to the
organization of juries for the trial of this and
other capital cases set for that day, the case
was called for trial, when said motion, as
has been stated, was made. The solicitor
objected to the filing, hearing and considera-
tion of said motion, on the ground that it
came too late, and no reason was set forth
for the delay in filing said application. It
was allowed to be filed, and in support there-
of, the aflidavits of nine persons were submit.
ted by the defendant. The bill recites, that

any rebutting affidavits, nor were any filed,
but the court overruled said motion of the
defendant, and refused to grant him 4
change of venue,” to which ruling the de-

“Vv. Curtis, 4 Mason, 232, 237, ed. Cas. No.

fendant excepted. The only statement in the

that the grounds for the change originated |

application stands on the same footing as if

“the court did not require the state to file |

Ala.)

petitio:
the fe:
him i
strony
fair ai
signed
made.
are vet
and t!
vit is ;
“that +
defend
The al!
them, i
with 1
humbe)
the cor:
stated,
Danie!
a@ nui!
defend
attorne:
iJ. T. 8
of pec)
would
_to cons
viet hi
settled
ions, th
have 2
as eviclk
ported |
facts.
66; Ha
Seams 1
must bi
statem
against
will ps
trial, is
well be
thereoi
factors
conclus)
the ex!
dice ret:

* declined
_ ground

made i
earlier ;
appears,
al diffie:
would !
prejudi«
that set
put the :

» applicat

2. Thi

court, 1

count o!
The eo

iofar as 1

act, “to :
Jefferson

yas the bh

ganizing

“week, C
as to hi:


=

| (Ala,

207; Rap. Crim.
-.~ uses the term,

hefore the trial,” —

in, that unless’ the
e the trial is en-

‘eretofore as prac. ~~
'; but, that provi- —

or,—“or it may be
i. new trial being

‘h provisions to- —

' the defendant is

' making the mo- ;

trial begins, but,
cticable,’—that is
‘© had been aware
> bases his appli-
nd opportunity to
"e must have done
pplication before
opportunity, it is
' sufficient excuse
'g. Enc, Law, 102,

It may appear.
‘hange originated

have existed be- —

new trial being
* the statute, the
“me footing as if
his suggests, that
or obviously good
‘nnecessary delay,
ithout doing vio-
4 on meritorious
er case, it will

is made when
ywarly for trial.
‘| of exceptions
nents were made,
e defendant pre-
‘of venue.” The
nuary term of the
din court on the
at that term,—on
» defendant was
‘iS counsel being
ilty. At the same
‘wn for trial, on
\pril, thereafter,
‘next succeeding
‘nd on that day,
, looking to the

“trial of this and ...

iat day, the case
said motion, as
© The solicitor
'g and considera-
: ground that it
on was set forth
application. It
in support there-

- nS were subunit-
bill recites, that
the state to file

’ were any filed,
*1 motion of the
» grant him a
ruling the de-
ement in the

petition as a ground for the change is, “that
the feeling and prejudice existing against
him in this county is so widespread and
strong, that the defendant could not get a
fair and impartial trial.’ No reason is as-
- signed, why the application was not sooner
Pe nade The affidavits, like the application,
- are very general in their statement of facts,
» and the conclusion expressed in each affida-
*_yit is substantially in the same language,—
_ “that the feeling and prejudice against the
defendant is widespread and very strong.”
The allegation of fact, as made by each of
- them, is to the effect that he had conversed
_ with and heard expressions from a large
_ humber of people from different portions of
‘the county. What these people said is not
a Stated, except in two of the affidavits, one by
- Daniel A. Greene, who stated that he “heard
& number of people go so far as to say, that
defendant should not have the benefit of an
attorney to make his defense’; the other, by
J. T, Shugart, who deposed, “that numbers
of people have said in his presence, that it
would take mighty little evidence for them
» to convict defendant; that they would con-
_ Yict him on general principles.” It is well
Settled, that the mere expressions of opin-
lions, that one accused of crime ean or cannot
_, have a fair and impartial trial, are worthless
Pi aus evidence, pro or con, unless they are sup-
ported by sufficient reasons, testified to as
_ facts. Salm y. State, 89 Ala. 56, 8 South.
66; Hawes v. State, 8S Ala. 37, 7 South. 302;
Seams v. State, 84 Ala. 410, 4 South. 521. It
: » must be admitted, that the application, in its
~* statement of the specific fact of prejudice
against the defendant, such as it is averred
Will prevent his having a fair and impartial
‘trial, is very general, as much so as it can
' Well be made; and the affidavits in support
thereof are also very scant and unsatis-
factory as to facts tending to support the
conclusions expressed in each of them, of
; ‘the existence and prevalence of the preju-
© dice referred to. The court might well have
» declined to grant the application on this
, ground, and on’ the other, that defendant

Agah
ey

Ree J

h “made no showing why he had not made
earlier application before the trial. There |

appears, also,
al difficulty in ‘impaneling a jury, such as
- would have been encountered, if such a
“1 . prejudice existed against the defendant, as
‘that set up in his application. We will not
-put the court in error for having denied the
application under such circumstances.

2. There was no error in the ruling of the
uh ‘court, refusing to quash the venire, on ac-
count of the absence of the juror, Walker.
The court was proceeding, in all respects, so
far as appears, according to the amended
act, ‘to expedite the trial of capital cases in
. Jefferson county” (Acts 1890-91, p. 561); and,
a -- as the bill of exceptions states, “While or-
= . ganizing the three regular juries of the
“week, C. C. Walker was present and sworn
as to his qualifications and any excuse he

to have been no unusuw- |

BYERS »v. STATE.

in order to complete the panel.

719

might offer, and was told that he would be
on jury No. 2, which was not completed;
and the court drew talesmen from the box
On the com-
plete organization of said jury, the said C.
C. Walker failed to respond to his name,
and no showing was made or evidence given
as to the cause of his absenee, and the court
organized the full juries for the week with-
out said Walker.” This party had not been
sworn as a juror, but like the others, had
been examined, alone, as touching his quali-
fications; and found to be competent to
serve, he and the others were allowed to go,

“until the court drew and the sheriff went

out and summoned,—as required by said act,
—a suiflicient number to complete the jury.
When he had done this and the talesmen so
summoned had appeared, and the court was
ready to proceed to complete the jury,
Walker, without the authority of the court,
was missing. It could not be tolerated, that
his absence, under such circumstances,
should balk the trial of the cause and the
proceedings of the court. The court did
right, to proceed without reference to said
Walker, and Conspiete the organization of
the juries.

38. Nor was there any ground for the com-
plaint made, as to the impeachment of the de-
fendant,—who had testified in hisown behalf,
—by the witness, McDonald. The question
propounded to him was: “Do you know the
general character of Eugene Byers in the
neighborhood in which he lives?” This was
objected to by defendant’s counsel, because,
as stated, “his character is not admissible,
only as far as truth and veracity are con-
cerned.” he objection was properly over-
ruled. General bad character, simply, may
be proved, to impeach a witness, without
asking the further question of the impeach-
ing witness, if he would believe him on oath
in a court of justice. Mitchell v. State, 94 Ala.
73, 10 South. 518; Railroad Co. v. Hale, 90
Ala. 11, 8 South. 142. The inquiry may al-
so be extended, but not limited, to his char-
acter for truth and veracity. Davenport v.
State, 85 Ala. 3838, 5 South. 152. The court

held the witness steadily to the prelimi-’

nary question,—though he answered evasive-
ly, a good many times, as most witnesses do,
from a want of understanding—whether he
knew the defendant’s general character? to
which witness replied, he did, and that it
was bad.

4, A witness for the state testified that
while defendant, deceased and two or three
others were at a table in a restaurant, on
Saturday morning, the day of the killing, de-
fendant offered to bet “that he could make
high, low, jack and the game on his band”;
and another testified, that on Saturday,
while defendant, deceased and others were
in a saloon, defendant had a deck of cards,
and taking witness to the rear of the saloon,
told him,
help him work a trick at cards, they couid

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if “he would go in with him, and.

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prenidion yi ae, girer
ordered: | ‘at Leda
bod: convened. ‘on "Dhuradayito
lowing the: killing ‘and.’ es
‘én indlotment against ‘th
Twenty days later: ppt a
on trial befote a Jury).tn’ egret
cult. court and; senten
hanged for’ the’ crime,*

to the supreme’ court: 6

rved. tay rae
the stave: wee tanh a

pe hanged Sea Bis ) in

‘The: negr rl
the case to: the United: ‘irate’
preme court, the deoiaton: of:
tribunal being, handed/d era's
May, Judge A.\P, Ages 860
the negro after. muccesding ’ Judge
Merrill, Ss Se eK
, Threats of Yacth aye b bias re
colved’ by, Judge Hugh! D)i Mer;
in case the negro: tte a
Sat re

soldier attr
ton equal to’that given. he Mirra
Pope case several years’ ago,’
tests against’ .the:, execution’ and
requests for -commutation. of ‘sen.
tence have poured : inte: Governor
Kilby's, office by. the haadred. and
last: week: the: beaea tet “tows the
voted. unanimously. td.,a)
vere of the: courte, fo'be i carried
«HAN ype yen aN a A
“Geldwatt ‘was borat in''G a ies
8. 0., 28 years axoj,and, bad:
ed: an: enllotnya {nthe : re r
army, -‘most’o > time’;
van in the. uintypine, ‘Islands..,
2 ‘His body was tarned. ‘aver to: Js|

BR,’ Ballard,‘ the. local: negro-nnaer-
taker after. the physicians, hed
| pronownced: the n nes dead, and
will be “kurted 1 in. ie: olty." >

i a |


Camp McClellan, rand down the car line toward Oxford and tgurned towardd the mountains on

the west. He was captured about two hours after the shooting by Joseph O’ Mella, an unarmed

member of the military police detachment, then stationed in the city. Lieutenant John Q. Swann

found the negro’s pistol concealed in his hat when he was brought into the city hall, and the two

exploded cartridges told the story of the killing of one man and the serious wounding of another.
“Attracts Nation-wide Interest.

“The case of Caldwell attracted attention in practically every state in the union. President
Wilson wrote a personal letter to Governor Kilby asksing that the case be held up until the
Attorney General could investigate and make a repdort to him. Letters came to the Governor of
Alabama from many societies throughout the country. Judge Hugh D. Merrioll, then presiding
over the circuit court, ordered a special session of the grand jury and the inquisitorial body
convened on Thursday following the killing and returned an indictrment against the negro.
Twenty days later he was placed on trial before a jury in the circuit court and sentenced to be
hanged for the crime. An appeal to the supreme court of the state served as a stay of execution,
and the negro was again sentenced to be hanged on December 5, 1919,,.

“Carried to Highest Court.

“he negro’s attorney carried the case to the United States supreme court, the decision of
that tribunal being handed down last May, Judge A. P. Agee sentencing the negro after
succeeding Judge Merrill. Threats of death have been received by Judge Hugh D. Merrill in case
the negro was put to death...Protests against the execution and requests for commutation of
sentence have poured into Governor Kilby’s office by the hundred and last week the board of
pardons voted unanimously to alslow the verdict of the courts to be carried out.

“Caldwell was born in Greenville, S. C., 28 ytears ago, and had served an enlistment in the
regular army, most of the time being spent in the Philippine Islands. His body was turned over to
J. R. Ballard, the local negro undertaker after the physicians had pronounced the negro dead, and
will be buried in this city.”-Star, Anniston, AL, 7/30/1920.

84 Southern 22; 40 Supreme Court 388.

CALDWELL, Edgar C., black, hanged Anniston, Calhoun Co., July 30, 1920.
“Edgar Caldwell Dies On The Gallows.
“Wife of Lenten, With Child In Arms, Witnesses Death of Criminal; Crowd of 2,500 Hears
45-Minute Speech; Condemned Man Holds Courage to the Last.

“Holding in her left arm the baby girl of Cecil Linten, born after its father’s death, and
holding his little son by the right hand, Mrs. Cecil, Linten, widow of the street car conductor
killed by Sergeant Edgar Caldwell on the afternoon of December 18, 1918, witnessed the legal
execution of the negro soldier in the Calhoun county jail yard at noon Friday. The trap was
sprung by Sheriff W. E. Parker at four minutes before 12 o’clock, and the negro soldier was
pronounced dead in 12 minutes by Drs. Paul D. Vann, E. L. Curlee, Bloozer, Asberry, McCraw,
Cryer and others. Caldewell was permitted to address an audience of 2500 people assembled in
front of th3e jail and spoke for about 30 minutes. He read among other scripotures the 23rd
Psalm, sang two songs and delivered an earnest plrayer in conclusion. The negro soldier went to
the gallows to pay the penalty of his crime with a firm step and a smile on his face. He stopped in
the jail corridor long enjough to shake hands with a number of his acquaintences. A touch scene
was rendered when the condemned negro stopped down and spoke kindly to the little boy of the
man he had killed and shook hanhds with the widow, who had come from Clay county to witness
the execution of her husband’s slayer. After delivering his address, in which he advised men,
women, boys and girls to lead cleaner lives, Caldwell and Capltain Dallas Holder of the Salvation
Army were placed in a cell on the lower floor of the jail, and the prisoner was accompanied to the
scaffold by Captain Holder, who has been his religious instructor since his confinement in the
county jail.

“The execution of the negro was witnessed by probably 200 people admditted to the jail
enclosure and by a large number who had climbed to the top of the taller buildings on the west
side of Noble Street and the nearby buildings on Thirteenth Street, The wonerful nerve exhibted
by the negro as he spoke to the large assembly of people on the front of the jail impressed
everybody with the sincerity of his claims to conversion to the religion of Jesus Christ and many
men and women were soon to weep as the negro told his story... The condemned negro spoke
feelingly of the kindness shown to him by Jailor and Mrs. Farrell, and by Sheriff Plarker, and in his
prayer before the jail asked that God’s blessings would rest upon all of those who had had charge
of him since his incarceration. In bidding his attorney, Charles D. Kline farewell, Caldwell made
the statement that the lawyer had fought a good fight, and with a “God bless you,’ turned in the
hallway of the jail to accompany Sheriff Parker to the scaffold. His neck was broken by the
drop...

| “Caldwell’s Crime.

“The crime for which the negro was hanged occurred on the afternoon of Sunday,
December 15, 1918, Cecil Linten being shot to death on a street car on the Constantine stretch in
Oxanna, the killing occurring within a few hundred yards of the home of the conductor. A
dispute arose between the street car conductor, Caldwell and another negro soldier named Bob
Little, Caldwell being ejected from the car by Linten. After reaching the ground Caldwell pulled a
32-caliber pistol from his blouse and shot the conductor through the head, the bullet striking
about the chin and ranging upward, killing the conductor instantly. After killing the conductor,
Caldwell turned the same pistol on Kelsie Morrison, the motorman on the same car, and who had
gone to thé rear end of the car to aid his partner in case it was needed. After shooting the
motorman down, the negro soldier, then a member of the 157th depot brigade and stationed at

death on o atreet eas) on the Cons
stantine stretch in Oxanna, the
killing occurring within a few
hundred yards of the home: af the
conductor.

A. dispute arone betwean: ‘the
street car conductor, Caldwell.and,
anothee negro soldier named’ Bob
Little, Caldwell being ejected]
from the oar by. Linten. After
reaching the ground:: Caldwell
pulled a 32-calibre pigtol from
his blouse and shot the conductor
through the head, the bullet strik-
ing about: the chin and ranging
upward, killing the ‘Conductor Ane
atantly,..° «=

After" killing’ “the: “eoliductor
Caldwell :turned : the same : platol
on Kelsie Morrison, the ‘motorman
on the same car.and’ who: had
gone ss the rear and. of tho-‘our: Ne

needed. After ahooling-the motor{
man down, the negro soldier; then
a member of ‘the 167th . de

brigade and ‘stationed ‘at’ Camp’
piicClellan, ran down the car lig
toward Oxford= and = turned =:
ward the m ‘weet,
‘He-was captured about: two. ‘hours
patter the . shooting. . by. \: Joseph
pare an. unarmed’: ‘nem ber: of
ithe military poliee. :  Getachment,
then stationed. te aN ek.

Lieuiesaat: QO Swann
found the ne Ay optitane yest
in his hat w \he, wag; brought

inta the city, Teall, cnavene two
exploded cartridges told the: atory

of the killing of ong man: athe:
serious. -wounding-of- another, a

Attracts | N
The case. = at Sulla |

attention = ever
te-in-the-t Wik

t sor wrote a personslriet a al

i Governor. Kilby ng that. tie

‘case de Held uy until the attor
general. could «" Invests §:
mene: 8 e dy to Soni bia:

came tothe: Ala

from many’. eostetion ; = af neat
'the- countrys” Sctantesed ;



CALHOUN, George, black, hanged Montgomery, Ala., 3-2-1905.

Oe p17 eP

Note MIT KO PITT O YP) rey rT Kad pry ofr VI

BSE:

re
ead

: a | Pe

ee Sp RENITY ee “SES: Cee a LE A ee ah, rg 7D er :

F Jat 7 we: Z LY Ty ey, fk y; A/ / wD) 2 SOPOT SE | ie coemeae 2 op ,

Ww

pry Ayyp > sop) oorne?2y 9 29 rity Vi frar fo rp wre roy td
a eee a ay 94: a 4 . oad ies ne ais eae AON 35 94- £. ss S
tones 1p erg heorge soi afile ere brane

SAE rc ——— ‘

\

\

4, yi * Rea 2 Serer vase §
Pee. ee St rey geome pi eue nti PR nae are Bs: ms LATS ee ame: ey cee ; Pe ies Age onl
Sia Riss Sich ole SE CI i OE SES SIGE RN Get PNA eS Rion aD Ta ee eie =f


Jim Ci ampbell

executed in Alabama on May 24

| 872. Apparently a new one and
probably also a juvenile.

Augusto Constitutionalist b/ 5 72 (52


er that capital also has

hat it is nat at all desira-
. tyranny of workingmen
italists. Both. will find

in the jnst allowance of

> other.! By this means
ee avoided which must

t loss and snffering. on
3, and. the employeds

ano ae

NALS SENT HERE. —The

eee from Germany ap%

+h more scrious question
d when attention was be-
| The Sun.
" w periodical; :iny the
. published: ine Brussels,
ine criminals were. par-

1an penitentiaries daring

on condition that. they
méelves ' to’ the . United

cludes twenty murderers, §

ee burglars, three shop-

ers, Ewe lninnsleldesi pas

Ros

‘tltidners “offt
een were sen aha ok
saden, thirteen from,the
3, and the rest from other

salling statement, more
the number of incendia-
no class of criminals Is
THe’ sibjedt should 1 ¥e-
a of Congress.

CHE. 5 INCREASE. — mark:
ale loveliness’ is the-eye-
f the immense’ popularity
{agnonrA .BALM has ob-
ladies of America: Com-
with snowy. purity. and

roseate hue of heajth are f

hwiénever it isfised. For |
wholesome appearance of

, abe Bttprly counter: f

is tee une then,
}-at-the marve ty
t effects in. theaeh Srna

‘Jef tuthsaac :

i Fae R, Re

Wee ties thers; as

The Review of

eset don't fail. a ‘tse | :

protest against straying and bolting, denounc-
ing men nowise their inferiore aa traitors and
ruin. [ am- confident that the American
people . have, iplready made your: .cause
their own, fully resolved thattheir brave hearta
and atrong arms shall bear it. on to triumph.
In this faith, and with the dis:inct understand-
oF one abe but of the.whole people, J accept
noms ation, Yitijthe ¢onfidenf trust, ifn
ine ae a) our Point eine *North “and
South, are eager to clasp hands across the
bloody chasm whick has too long divided them,
‘ forgetting that they have becn enemies in the
joyful consciousness that they are and must
henceforth remain brethren. .
“Youra, gratefully; ) °° Horacw’ GREELEY,

ae Hon. Carl Schurz, President ; Hon. George
Julian,» Vice-President ;-
Willian E. S{eLean, John G. "Davidson, J. Hi.

~ Btatea,... a3 tut.
atAt #5 a |
+ |

LET Din VooRnans, AND WISCONSIN ‘EL

1; ad tg

F j STTRT; tats 4 7
4 fis be ie tah ii

‘simple little’ experiment, by which we can
prove the existence.of a amall spo

paper ten or twelve inches from’ the yes!

w.¢ |

Now move the paper slowly toward the eye, :
which. must be fixed on the sawback. |
Gerlaiti distanced thier: other ‘fighre=the Teter. 0
—will suddenly | ‘disappear ; but, if you bring
the paper nearer, it will come again into yiew.
‘You may not succeed in tne. experimént onthe
‘first. trial, but with a little patience you can
hardly fail, and the suddenness with which the
i black spot vanishes and reappears is very
‘Striking.. Now examlnatio
when‘it. ‘disappeara; ites fitthge falls-exactiy on
‘thespot-where the optic nerve enters, the eye
thu proving that spot tobe blind.—New Yor

sine) &-

P4
4

vi ES OF

ns tf

Jim «Campbell, | a little mulatto boy, convict:

E-
'
¢

ted {moar
riba ‘county Bae

FY:

pisicane are | sg In

Y
TeX

fey isis,

hang: at. Cuba Station, ath the J

_ the: family, A‘ few mo-

enext degen
al ighted m

eee te He ik ou

renegades, and threaten them with infamy and |)

ing. that, if elected, I shall be the President not

and: “Meéssra. |

Rhodes, Secretaries of the National Conven- |
tion of the Liberal Republicans of the United |

DRIDGE TRY THIS EXPERIMENT.—Here is a{

tin, the eyes. §
Shut your left eye, and with the right one look |
steadily at the sawbuck just below, holding the f

ol

At a.

n., has. ae showD. Anas, ||

.ed ney, the murder of Mrs. Dr. ae of Clarke |

J ‘

ee days ago. Mr. James R. sMertioy,< ||

is store, about dark, to ob--
5 the store 6 a terrible eX me

Making perfect connection wi th trains Ieaving
. “

Passengers going over the Milleagevina and Kat
ton Branch will take Night ‘frain from Oclum)
Atlanta‘and Macon, Day ‘fraihs~ frofn’ Augusta,
Savannah, which connect daily at Gordon (Bund |
excepted). with Milledgeville and Eatonton Train

BF An eee Bleo Gar on all Night Tro
aitesgn le” oC WREEAH, OG irs
Gent Bap?

‘apern-tf ”
OHANGH OF SCHEDULE. ON THE GEORG

“AND MACON AND AUGUSTA RAILROADS

on. ‘AND ‘ARTER. SUNDAY, MAY "orm, 1! |
“ithe Passenger Trains on. the. Georgia and Ma
and Augusta Railroads will run AB follows :

| QEORGIA RAILROAD,
DAY PASSENGER -URAIN _ WILL

Leave Auguata at.;. eee te eeserses 8:00 a. 0
Leave Atlanta at....-.c.c005 ceseseese10:15 a. 0
Arrive in Augusta at.... stedereeareess 7:30 p. n

“Arrive in ‘Atlanta Ateees soewrvcccccccs 8:40 bye n
ni wos AL ‘rset aS 2 OY

meet cd vAssanonn PRAIK ue
‘Leave Atiguata’atl... oan a CEES 8B pit
Léavé Ailanta at 02.05 5 Palomo 8:00 p ir
Arrive in Augusta at.. -cccceccsiaccee = 6:00 a tr
Afrivé ti Atiahtalat........iee eee eeede O45 'a

“MACON AND AUGUBTA. RAILROAD.

A FIT A Rg
Che) & os Adie ae H Ai ‘|
Leave Anguata at. reedevcess Se acnecseee 11:00 a. Tr
Leave Macon atesweres. sdeadeseeense .» 6:30 a.m
Arrive in Augusta at. prerasereceseqes, 2:45 p.m

Arrive jn Macon” oy Se SOT A %:30 p.m

: HIGH; PAnennOny TRAIN.
-Leave Augusta at..csscce cove voeetece 8:15 p.m
. Leave . MACON B*escsesenevess np aero ge e0]0:00 p.m
"Arrive in ‘Augusta at... veoh vecsceees BO Q. mm |
“Atrive in Deiter 4 Te ate 4:15 A, m

Passengers from ATHENS, WASHINGTON, A
LANTA, or any polat on the ‘Georgia: Raltroad a
| Branches; by taking the Day’ ‘Passetiger’ Train}
make conbection at Camak with trains fot Mason.
PULLMAn’s (First-Olass) Pinion Biuerina OC.
er aia asienger Trang on. the Georgia, Re
; and irst-Class Bleeping’ Cars on all Nig.
ins on the Ms 6 and Augaata Rallroad.

See ae:

Oe s, a+:
ae ~%

~ - 8, K. JOHNSTON, Sup’
oka Grih tek (Oyhod Guombti ann Pad ‘Ae

vaus7A TE ROADS, sueoaiay May 18, 1872.
: pmysae ang ha SION NOTE aE
ere: Ri. hers eng adpEaase CHE RIAG t. ra
| BARRY BE LEBFOR. TOUNG, MEN fro
the effects of Errors and. puree it ee test Me
[hood res tored. ‘Nervous de


2 :
mad, BENNIE CANTELOU, Hanged Montgomery, Ala,, March 21, 192h.
ear

"Montgomery 2-26-1923=Bennie Cantelou, negro, shortly before midnight on 2=26-1923,
was convicted of murder of Mrs, Susan Masiin and sentenced to death, The jury reached
a verdict after deliberating since 7 o'clock, The murder remained a mystery until two
weeks ago when incriminating evidence was found in Cantelou's trunk in Conecuh County,
He was indicted and brought to prison from the penitentiary where he was serving a term
for burglary. |
"Mrs, Mastin was a member of one of the most prominent families of Montgomery County. |
"The trial consumed the entire day and the case was submitted to the jury on the charge |
of Judge Leon McCord late in the afternoon,
"Cantelou is a state convict, having been convicted of robbery in Conecuh County, During
an investigation resulting from the robbery of a store by Bob Randall, Sheriff of Conecuh
County, at the time, and J, V. Andrews, Deputy Sheriff of Conecuh, found a watch in a trunk
owned by Cantelou, Later a purse was taken from the possession of a negro girl and she
testified it was given to her by Cantelou, This purse was identified as one taken from
the Davenport home with the watch,
"Formany mohbhs it was thought the Mastin killing would not be solved, Investigations
of the state did not incriminate Cantelou and had the negro not been accused of another
crime, he would never have been suspected,"

BIRMINGHAM AGE HERALD, Birmingham, Alabama 2=27-1923.

10m16=1923-Indicted by grand jury....0fficers had reached oonclusion that mrder would
remain a mystery. Cantelou arrested in Conecuh County store breaking charge. Officers
searched his trunk and found fine watch which investigation developed had been taken
from the home the afternoon Mts, Masten killed with a stick, Evidence offered to
grand jury to show that Cantelou had worked near Davenport and had quit his job a few |
days before Mrs. Mastin was killed, A coat found near home was also identifed as
Cantelou's property." AGE HEARLD, 2-17-1923 —
|
|

"Montgomery, Alae, Feb. 9, 1922-.e.Mrs. Sue Mastin, 75 years of age, was found on the

floor of her home with her head badly bruised, An ax was found in the room A safe in

the room was broken open, presumably with the ax, and ten $XB $1 bills and a watch stolen,
Mrs. Mastin is in an unconscious condition and there is little chance for her recovery,

Mrs. Mastin was found by her sister, Miss Liza Davenport, when the latter returned home from
a visit to a neighbor, A posse in charge of Sheriff Scogin is scouring the section in the
vicinity of the attack,"" AGE HERALD, Feb, 10,1922,

"2-10-1922= Excitement prevails in settlement of Davenport on edge of Montgomery and
Lowtides Counties as result of death of Mrs, Susan Mastin, 73-year-old invalid, whose broken
heddbwassbdaberyteaa fubngd bértseuhbmeroghéd dheDavenporf LhrradaythfitientcknbrolinsfoMagompte
and bruised body was found at the home of J, J. Davenport Thursday afternoon, Mrs, Mas-
tin's head was beaten to a pulp, her skull was crushed, the bones of her arms and hands
were broken, Five dollars had been taken from a small safe in Davenport home, It is
believed murderer thought there was large amount on money in safe and went there to get |
it, finding Mrs, Mastin sitting in a chair, Believing she would give an alarm, attacked |
her with a stick, Friends of the family decloared it was not possible for her to give

an alarm which would attract a person outside of house as she had been invalid for many
yeaars and could not have attacked intruder had she tried, AGE HERALD February ll, 1922.

then went into the room, where
the ge allows. was propared, and
viewed the stirroundings: with the
utmost. composure, never for an
instant’ displaying 4 che slightest
‘trepidation or suggestion of fear.
A negro. minister , Rev, Bob, Shell,
‘offered a fervent’ and especially
appropriate prayer, and: the final
preparations | were begun. . The
condemned man’s hands were cuf-
fod - behind him, his, legs W ere
bound together, the noose adjust
ed about his neck and the black
cap placed ‘over. his head. He
stood in the centro of the allows,
and when, at a signal from Mr.
‘Passmore, Sheriff. Caraway out
the rope. that sprang the trigger,
his body. fell” "perpendicularly
[through eight feet of: space to the
|room- below, ‘the force: of.the fall
breaking his neck. ‘Tho body: was,
almost motionless ‘ater. the drop,
jand in: just 12 minutes, Drs, Smart
& Bennet pronounced life extinct.
Thus it was. that, Dan. Card. was
hanged | and the. ‘cruel doath | of
Robert Arrington ‘avenged. Oard’s
body was taken in- hand. by. his
relatives and shipped to Louisville

in the evening. Shenff Caraway
is to be commended for the man-

anaes enn naan og oa

Joram which hex’ pé
eeNOUs ANG, to say the least of. 1 ?
onpleasant dut iY, for |

aT
ever ‘
was done in : thing}

in orderly
manner
and nota hiteh occurred.

50 people were illowed to
tha execution,

thousands, black
were on the
who were

About
Witness :
fund | there w ere |
and White, . w ho!
outside of the” jail,
eager for "the |
At an e: irly hour on I r
ing, people beg:
town

pr iviloge,
iday anor Ne |

7 wn to pour into the|
om al] dircetions. “Phy

came in earrige usd
3 i ig; ges, buggies and

Wag
dene on horseback, , on ‘mule: |
baa c |
ve and on foot titi] there “had
ga Ne .
: ‘eg the biggest crowd: tu t
12s hee .
; dn Clayton in
tea ae Many a
Mstimates. vary, ag to th
size eins
@ of tho crowd, some patti
ig

the number
Nher ag high 128 5,000,
othors think there Were ree

3,00

E ae A conservative. ere
ould be. 000, and that . a
tainly. hot too large,

-pensary was closed un
afternoon,

|

not. over

S ° cer-
The Dis:

til 2 nah the
$0 the drinkerg did not!

“b Jave time
f eto’ get full
GL ry
create disorder, fa rken hi : aL
Maken allin alt

the d:

day was Without. serious
sequence to any body bunt D,

Oare . 1 OL d ay
ard and the sooner. he ig forgot

ten, the beti
stter for 3
eee re the

COn-

eneral'

tee we teat Reunewentrave wearer te aidan
~

rformed ‘the i

|
|

CanD, Dan, black, hanged Clayton, Ala., June 29, 1905.

; ployer, 3

3 m orning. oh

Tete nemeenes eye Seaton sae eee

|GOVERNOR OFFERS REWARD FOR
hee oe DAN CARD,
The Modiraok has. offered & Te-
ward of One Hundred and re
Dollars af tthe arrest and convic-
tion oft “murder ar of Robert
Arrington. . Recent: developments
point unniistakab aly. to Dan> yard
and Jeave: no. doubt but. that. he is
the ‘guilty par nbs Mrs! Atnigton,
after she ‘had iGo vorbd from. her
shock. states most. positively that
‘it Was ‘he, nd. Buys that she vow
hag: 10 tecéllection ae having: a

cused | any: One”. ‘elses: “Card Was

\mors, until ho ‘sought, to. dispose

| day

Ww okin: ee Near cel lopton, “and “on
‘Saturds ay before tho: kittie: ert |
ostensibly for Blaniville; taking |
with him a Single bartol. shot gun
whiéh be Borrowed: from his gun
On ‘Monday at: noon he!

ih ¢ oe
| ate dinar WHEL ty negro WwW ho lived
Dear. Solomon? 3 milly ‘aur | in the

afternoon, | went in. tha: direction

jof the Arrington home, taking his

won With,

On. Tuesday
Ad Teturned | to. he
employers 1 ie Cle ptony but: ‘thoy!
did not suspect: that he was the|

perpetrator of. the « crime, of which

oll

they had heard, : hothing . but. rue

of some clothing | which, upon ex-
amination, was fond: to, be the
property of Mr. Arrington, for in
one of the cont pockets were his
picitire and several letters addres-
sed to him that Card was: foolish
onough not to destroy. ~The Glop-
ton ‘nren ‘decided to arrest the: ne-:
gro, and came on him white Q asleep
Vnder a buggy: shelter on: ‘Satut-
niitht.... Hle escaped them,
however, ‘They fired soveral, shots
as he retreated, ‘but none of: them
took effect. Dogs were taken’: “tO:
lthe place, but they could not run
|the track, Sheriff Caraway and
Mr. Ed. Gillisiwent to Clopton on.
Sunday, and, in: company: with |
quite a number: ae other. gontlo-
made a- diligent’ but ‘fruit-
less search. Hesecured the cloth-
ing that Card | had,’ ny suit. of
clothes, several sivirte: Qu pair of
pillow ¢ cases, two capes and an
apren, all of whish .Mra. arripg-
ton knew had. een in the .frunk
that was taken from her | house,
and which she.-hady “déscribed: to:
Mr, Caraway. Card was seen last
about seven mile es fron m.. Wc ho, 0!
Dale county,” and t Bod *hovinds |
were sent to that place, with w bat
result we hayo not ascertained.
The whol country Je. aroused, and
‘it looks’ Hilke an impossibity . for
i tho wretch to make t n — asap.

|

men,

ae wie cap ee bamny ty nate, so nego eee wih

wr

1/90? Pe

Asa

“Another fee acentie on: as tai:

on. last Friday: ‘motning,. Dan
Cara, the famous negto murderer
died at the end of the rope in ex-
piation of his horrible deed. The
crime for which Card vag corvic-
ted. and for which he was condemn-
ed to. dio was the atrovious murder
of Robert. t Arrington near Solo-
mon’s Mill On. a ° night in. June,
1908 and its details are’ still Fresh
in the minds of the people of this
and neighboring counties. For no
other purpose than, robbery, Card
sneaked to the. home of Arrington
under the cover of. darkness and
shot: him dead a3 he: sat.on his
porch-with his mother whom the
brute also: undertook. to kill by

Card: fled the scene of his
crime, and was Not. apprehended
until about 8 months AZO when a
| Dothan. Officer located and arrest-

State’ of Florida, ‘The “trial. -OG-
curred, in 1D ofaula at the last term
|of the court, “Card denied shoot-
ing ‘Arrington, but acknowledged
striking Mrs, Arrington with the
aQxo claiming’ that he Was. forced at
‘| the point of a short gun to do go

a2

them, fired. the: fatal: ‘shot. Mis.
Arrington stated. in. the presence
uf those who. “Were » first: to, re qach,

day; and, when. ‘Yeason | and con-
sciousness. resumed. sway, s she fixed
the crime on’ Dan Card, “and on

ken place - in Barbour County, for,

orn her in the he oad with an”

ed him - just acrosssthe? ine An the

oy Jasper Thomas, and. his Droth-
er, white. men, and. that. one “of |

Ppbaiias iillea: her son, “The nee

ithe trial of the case she was. posi-
‘tive dn her contention that he Was
j the. murderer, _dhe other facts,

—

the finding of .the dead man’s
clothes ina sack that was in
Card’s possession when. he return-
ed to his employees whom he had
left immediateiy preseding. the
murder, fixed his guilt so plainly
that the jury ¢ gave. him ‘the law’s

limit. Irom the time of his trial
until his a ndoing, he has protest-
ed his innocence. He had-atten-
tion from colored Ministers. and
one phitanthropic, christian white
lady visited him in jail, prayed
for bis sonl’s deliverance, and,
showed him-the‘hght. .On Friday
-morning at- about 10:80 .o’clock
he appeare dat one of the windows
of the. jail’ and’ made his last
speech to wa vast multitude that
were without. He said that he
could nike startling revelations
-but that he preferred not to do so;
that he had fair und imparcial
treatment by tbe courts; that he
ought to be hanged; that he: had
made perfect peace with Ins Ma-!
ker and was ready to- go into Hig

presence. At the conclusion of
his taik, he sang a rather -irncohe-,
rent song, of his own composition,
and bade the crowd gocd-bye, He

y Pend
to
7,/ Ms (ute CL


CHAMBERS, Jim, and SHAW,

Lon, blacks, hanged

Luverne, Alabama, October 30, 1903.

Sememeetiee tt
ny

Lon Shaw. and Jim Cham-
bers Are Executed,
/ Aes |
- Admits Having Killed

Williamson Champion, and Says

Former

Chambers Was Innocent.
Latter Also Says He
_, Was Not Guilty.

Luverne, Oct. 30.—(Special.)—Lon Shaw
and Jim Chambers, colored, were hanged
here to-day for the murder of Williamison
Champion, another negro. :

Sheriff S. D. May sprung the trap: : at
12:20 and both men were hanged at once.
Lon Shaw’s neck was broken bythe fall,
‘and he was pronounced dead by the phy-
sicians at 12:27. Chambers died: by stran-
gulation, and it was thirteen minutes be-
fore life was declared -extinct.

It is estimated that 5,000 persons, among
them many negroes, witnessed the execu-
tion. The gallows was erected outside
the corporate limits of the town.of Lu-
verne, and the condemned men were con-
veyed to the spot in a wagon, They sang
and prayed en route. ‘The local military
company served as an escort.

On the brink of eternity, both men
made speeches and expressed willingness
to die. Shaw said he killed Champion and
exonerated Chambers of complicity in the
crime.

“False witnesses sent me to death,” de-
clared Shaw. “It is true I killed William-

TWO NEGROES DIEON si
"GALLOWS AT LUVERNE

son Champion, but not in the manner nor
at the place testified to by State wit-
nesses. I shot him while we were in the
woods witha single barreled ‘shot gun. I
took him to my house, tied'a’rock to the
corpse and then placed it in~-the ‘creek:
I killed him about my wife. Jim Cham-
bers had ‘nothing to ‘do- with the mur-
der.

Jim Chambers said:

'“T am innocent, but.am ready to die. I
knew nothing of _the murder of Cham-
pion.”’

Turning t6 Sheriff May, - ‘Chambers nales
ed permission to pray, which was readly
granted, ‘and Shaw also fell upon. his
knees,’ When they arose, the black ¢aps
were adjusted - and the: two men_ hurled
to death.

The history of the rion ‘as developed
by testimony at the trial, is as follows:-

About the 28th of March, 1908, in Beat

+4, Crenshaw county, Lon Shaw. knocked

Williamson Champion in the head with an
axe and as he (Williamson Champion) was
lying on the floor dying, Jim “Chambers
came up, pulled his pistol and shot at
him three times, hitting him twice in
the back. Lon Shaw and Jim Chambers,
together with Sole Arrington and Bob
Bedsole, then took the body of’ the dead },
negro, tying a rock to it that weighed. 43%
pounds, then threw the body into a cree

that was swollen by the recent rains, ane
when the water subsided. the body w

found. Lon Shaw fled. to Kansas,

Arrington was arrested and given £ pre’
liminary trial, which resulted in his be-
ing bound over to the Grand Jury, and
warrants sworn out for Jim. Chambers,
Bob Bedsole and Lon Shaw.\ These ne-
groes were indicted by the fpll term of
the Grand Jury, Jim and Lon\were tried
and sentenced to be hanged a the 30th
day of October. ‘ ee

he Nh
at

Ms RT AT GROVE HILL.

Pend jl Litics ay Theme. Pes ‘tae

Clarke. )

te

known. and esteemed ‘by a wide circle of
friends-in ‘this city-and section. ° /

A valuable tenement house on Magazine
Street mas destrayed by fv’ this morning

eure a ley oad F

CHAMBERS, Jim, and SHAW, Lon, blacks, hanged Luverne, Alas, 10-30-1903,

scactcineceianlieied c ) a) ;
Lit Mag 1 fone Chaubers hanged 2Y Kevrtroo bu 10/20/) 2
feos % Aud Wagantlle, Leger o pray ah Sy The
ie = Wy: “SC O06 beret-ne lirtrueatid tpteutitn - Arend 25/6 2
QAKe gidfa tutena buying ou flaw A Lihutinrs Cant yp,
Biopthin pisdot IG: C4 Khun ehh“ Cuelcts eis
of ftl tubeok, Lhoy ¥ Tse others leek birdy fo a nuk Loy
dy MO LWo) retire tlh ZG Large PT, A Kher Fern i 4 ate
leer. dyxtine ikeare dia prety Grae feunk bhaw pled Zo_ e.
Khan Yeeutagutrlly eatirah 1 Ave Kilerre arreatich |.
(ZL ¢ Mpld dlerg, Hheay Perrd Selb eviedente f Acre.
i / Pe orga sty & gihleoa 2tr.itd Ae Lb,
for Shtrr lf ; pat PLE ye Se ~ CLanhers Leh 7
phan lation | - gelleiun Shaw Zaid ke Atled |
= Clea Ses OMA whe loca + Crum Setwroed tn bred bag Pre
AR coe ne Lkere lprtrucedig etd ‘ Shaw Zatef CL Att L004
LUCis Linteetoct as Lu! Yen haat trds, L/ pet Gellar . Yiuct
a fR-21 freee Ltt eta tlaecet JF Ceca) “5
: S10 — few SI ZOMG OR


123 SO 50 (219 ALA 670)

CARTER, Will, black, elec. Ala. (Jefferson County) July 26, 1929.

(Item condensed)
"July 26, 1929. - Will Carter, convicted slayer of Birmingham pay master
Sam dare s in city, electrocuted earl this morning. Protested innocence
to last. Placed in chair at 12:03 and first charge applied at 12:07.
Second charge given at 12:1) and pronounced dead at 12:15. Only présen
officials and newsmen present. Governor Graves had denied clemency on
Tuesday afternoon ,. Carter, present at the hearing, s aid that before the
paymaster was killed someone struck him on the head and he recalled noth-
ing until after the arrest. State's witnesses had previously testified that
Carter shot and killed the paymaster as he was leaving the office of an
industrial plan t. The request of Harris! widow to witness the execution
was denied by the State." AGE-HERALD, Birmingham, Alabama July 26, 1929,

wee
e insisted that | become
finally consented and we

on December 19.
Duke asked me to marry
ssed his family «affairs
he was twice married
children made me realize
ipleasant-for me to mar-
er into his family, How-
m that IT woukl sign an
! to necept any of his
tse of death, only sxegur-
ry my own property at
h ts situated four miles
~~ shea.” Imreply to thts Mr.
, belfeve in you now and J
bt yousany snore. [ shall
I will find a wity to. give
n alive stocks and bonds
eft. after my death, the
peht over it if they want

uke give such
nds?" was
ver add.”
hen told of her marrisge
" Com In New York.
ta hotel until Mr. Duke
vuy on Jan. 6. she sald
hing to fear du Pexias,”
| ce "Poa net afraid, toe
and while to ohave no
Hy dydbetovvent mpgecdriet
n conecelyve of no renson
4 property of mine dn
improved by build ting
help, and PE bhave stocked
nd made tt self-support-
Iso ratsed a crop of to-

you any
asked.

need a Letter.
rroduced a detter which
written by her husband
1 which he wrote of her
terms,
aid that she was born
37) years ngo and came
‘ines’ boarding house in
xhe Was 12 years old.
she said, was Helen Jt
shter of the professor of
the University of New
srandfuther was Thomax
father of Freemasonry
. she declared. She also
rringe in 1885 to George
i, Which marriage she
led, and her marriage in
E. Powell, and her di-
n In 1903,
rence with his attorneys
‘ramham, private secre-
L. Duke, gave out the
ment:
vill have nothing to do
idl all the charges made
» thoroughly cleaned up.
sane as uny man living,
“ion he will be released
of insanity. To have
years and he is capable
hix own affairs. Mr.
yesterday he would not
™ orany of her representa-
: charges against him
Ly | Mr. Duke says If any
igainst Mra. Duke prove
> Will have his marriage
Vs altorney, Champe &.
John TD. Lindsay, repre-
° uke family, conferred
District Attorney Per-
Nee the Duke case.

IN TEXAS.

dad Chana. KF, Trylor
With swindling.
Texas, Jan, 14.—The
urned in) Nacogdoches
Miss Webb and Charles
September has been
the hope that one or
urn to Texans,
charge of
t transaction in which
alleged, borrowed $3,000
lent pf the Commercial
they. having made al-'
—~—_, resentations and hav-
ey: false recommenda-
—.

A are
SS
8

aewindling

ty

t hax been made to re-
1 of either of them to
VW) trict Attorney Imboden
ie willing to cooperate
D Tork authoritles If they
Miss Webb back to
en Hog Raleer.
State,
Jan, 14.—Mr. G. C. Me-
-ord is a champion when
ising hogs. . He ‘killed

‘* @go 20 months old
850 pounds. This ani-

‘a ede chddtoiew dele JYuslelaiay
With an infernal machine in his) pos-
sexsion and who is locked up here. In-
Spector McClusky of New York was
in communication today with Captain
of Detectives Donaghy of this city and
usked for 48 hours in which to prepare
his claim for the prisoner, who the
New York authoritles. are positive is
the man wha attempted Jo blow up, the
Cunard fine steamship Umbrian In) May
1903, Capt. Donaghy also heard from
Washington and was  tnformed that
photographs of Rosseau had been ideh-
tiffed thete ax those of the ernnk who
hud attempted to destroy the statue of
Frederick the Great by hanging an in-
fernal machine on the fence surround-
fog the statue.

Capt. Donaghy notified the authori-
tles of both citles to send representa.
tives and said the prisoner would be
turned over to the city presenting the
strongest evidence agulinst him. Ros-
Sau's coolness and nerve do not
sert him. ble sits quietly in his
at city: hall and never complains.
Was very unxious to get the
Newspapers, bul these were
him, He ls aoinan of more than aver-
Mere foteliiggence and education, His
Wa wers are civil but diguited and trim,

eel
He
morning
refused

sentor counsel, from a hunting trip to
Georgia. While It is belleved that an
effort Is to be made to secure ao re-
spite for McCue to give him oppor-
tunity to prepare for death, It may be
that an effort will be made to have
the supreme court review the case on
it rupplementary petition.

There seems to be no doubt that
for commutation of sentence
Imprisonment or for pardon. Their
only hope 4s in. review of the case
by the appellate court.. McCue knows

to Hfe

Wife and Adopted Son.
Roanoke, Va., Jan. 14.—Jumex Lin-

Radford of wife murder wax today sen-
tenced by Judge Cassell to be hanged
on Friday, February 17. He will be
brought to Roanoke tonight for safe-
keeping until the date of his execu-
tion, ;

On last Christmas day Linkus killed
his wife and their young adopted son,
locked the bodies In a room and set
fire to the house, destroying the bulld-
ing and burning the two bodlex to a
crisp. When asked to stand up and
recelve the death sentence, Linkous
declared he was innocent of the crime.

GEN. M. CC, BUTLER WEDs.

e

Former South Carolinn Senntor Taken
Mra. Chan, %. Whitman for bin Bride,

New York, Jan. 14.—Gen. Matthew
C. Butler, formerly United States sen-
ator from South Carolina, and Mrx.
Charles S. Whitman of New York were
married today In Grace chantry by
tev. H. MeKim. Only a few friend«
of Gen. and Mrs. Butler were pres 3
The bride was given away by Pittrick

Calhoun, and Perry Belmont as the
best man, .Gen. Butler's home js# jn
Washington,
Passing Hogns Check
Speciul to The State.
Charleston, Jan. 14—The epgroes

have taken to passing bogus check
a lively rate in Charleston recen
The fhird. negro was sent to fall toda
within a couple of weeks for passing
the spurious ‘paper. In the ‘cases the
sums. were. small but the Intention to
commit fraud ‘and ‘secure . the smoney
seems to have been sufficiently proven

to justify the commitment for trial.
h ‘ ye ay Ne Aa Se

Cxecze Smy Klas (

de-

and he cannot be induced to answer o fas neting treasurer of the Republtlean
atnagle question about hiinaelf, State committee. ie the onty document
“Tonade aomistake.” he sald to Capt [that up te the present time thas been
Donaghy today, ‘Vut bo have pothing | Used in the legislative jovestigation,
further to way. Tf you want to know} The reeetpts are for contributions
anything about ome. vou wlll have to ranging from $10 to $20,287. The flatter
find it out for yourself. 1 eant helpjpamount stands ax the contribution of
you.” Mr. Niedrtoghaus, Among the con-
oe tributors the onmesx of Adolphus Busch
WCUE'S COUNSEL, DELAY ACTION, | and Otto Stifel do not appear,

an When, Mr. Buseh was catechised by

Only Hope ep Pang on ss Care by Ap-|the house cominitter today there was
fest Vices? Rte eee but one time that he appeared to mo-
Sithel ees ities a fan We Atier vane nentarlly become ungered, That was
uel MeCue who in to be han sed on when Mr, Lyons, chairman of the com-
Friday, for the murder of hi py \ mittee, asked him ff in consideration
. ne . “ per Of Bis wite Intin the guarantee of the deficit. In the |
Charlottesville, decided to do nothing |. | f ! there w t ree-
further until the return of J. [.. Lee eee De) ee Se ee
Yi {ment that legislation favorable to the

the attorneys for McCue will not ask |

nothing of the actions of his coun. !
sel, | Former Chatinnoogan Alderman and
7 : ae Snioon Keeper Held on Se-
SENTENCED TO DEATH. rioun Charge.
James Linkous Convicted of Killing | (hattanooga, Tenn, Jan. 14.—Mra.

kous who was yerterday convicted at | Cound dead at her home near the Geor-

| day.
| OM

trout

| Washington county

,

Ui pies as UO,

“LT have not yet pald the amount. I

guaranteed,” he said, “but shall do so
if IT am called on.’ In answer to a
question he declared that he had con-
tributed to the fund for the city as
well as for the State campaign, giv-
Ing $1,000 before and $1,000 after the
election.

After, Mr. Stifel, Thomas -K.- Nied-
ringhaus appeared again before * the
committee to make a voluntary state-

‘Ment to the effect that Richurd ©,
Kerene and Wm. P. Thompson had
both offered to guarantee one-third of
the amount to the committee's def-

icet,
Mugrene C.
yesterday before
tee, testified
tee toduy.

Brockmeyer, who testified
the senate commit-
before the house comuntt-
Heo snld he knew of several

contributions to the State campaign
fund which were not) enumerated. tn
the statement, One, he said, war
$2,500 from Agelphus Buseh, which he
took, from Mth. Busch to Mr. Nied-
ringhwusx personally, He said he also
carried # $5,000 check from Mr. Lbuseh
to Mr. Niedvinghaus,,

The sworn statement, Med with the
recorder of deeds, under the corrupt

priactlee wet, by Thon 1K. Niedring haus

brewing interests would be passed by
the Missourt legizlature.

Mr. Busch's face flushed as he an-
swered emphatically that no such mat-
ter was broached.

“There never was In any, shape or
form, anything spoken about such mat-

ters,’ wald Mr. Busch. “Any Intima.
tion that such was the- case ts-total-‘
ly false.”

——_—_¢-—--@

EX-ALDERMAN MURDERED HIS WIFE

James Roberts, wife of a former alder-
man and saloonkeeper of this city, was

gia line a few inilesx below thin clty to-
Her skull was crushed and vari-
brulsex were about the fuce and

Veraily of invrth Carona, the Univers
sity of Weat Virginin and the Univer-
sity of Mississippi.

CHESTRA’S TAX COLLECTIONS,

The Record In Somewhnt Ahead of Laat
Yenr—Old Dwelling Burned,
Special to The BStute.

Chester, Jany 14.--While collections of
tnxen are refidrtot gagroutewhnt: tardy
in other-counties of the &thte, Chenter
is well up In thts matter. Out of a
total levy of $79,337 for Btate und coun-
ty taxes, there has beet collected up
to this time a Httle over $60,000. This
record tk somewhat uhead of. that of
last year and considering the heavy
decline in the price of cotton since the

Ist of December, is altogether credit-
able to the taxpayers,
One of the old-time farm mansions

of- the county, the DeGraffenreld. resl-
dence, on Big Sandy river, was de-
stroyed: Wednesday morning from an
aceldental fire. For the past two years
i ohas been occupled by farm laborers,
TU was amon the largest residence
houres ja the county,

Dr. J. Brown Gaston of Montgomery,
Ala., da here on aw visit to the fanmilly
of Judge Geo. Wo Gage. He thine been
attending the centennint celebration of
South Carolina cobllege, of whteh he war

A graduate io the chine of Uk82, with
his brother, Capt, J Luelus  Cinaten

(who fell fn the battle of Seven
Judge Joshua Hi. Hudson, Gen. badtoy
FP) Youmans and other eminent men,
Chester people are much gintitved sat
the fact that of four prominent speak-
ers on the programione of Bouth Cur-
Olina college centennial celebration, two
were natives of .Cherter eounty,  to-
wit: Judge Joshua Fl Pludson and bon,
Win. A, Barber. Both of them
honored the land of their birth.

Pines),

Solicitor) K. Henry ta in Celumbia
attending the sissions of the leginla-
ture,

Judge Geo. W. Gage cleared the xex-
sions docket at Orangeburg Ino two
days thin week and is at home until
the opening of the court) of) common
pleas there next week.

Mr. H. OT. Carter, an energetie farm-
er of thie county, kKHled a few diys

ago four hogs which yleldell him over
1,300 pounds of net pork. This kind of
work /womewhat offsets the “tow price
of cotton, o>
Col, 'T. J, Cunningham, messenger to
earry the electoral vote of the Btate to
Washington, left last night
—_—__--e

DROWNINGS IN CHARLESTON,
Number of Negroes. Drowned During
Yenr Namber Fifteen or Twenty.

Rpecial ta The State. :
Charleston, Jan, U4.--The Het of ne-
crock who nre meeting thetr death by
drownlng jn the harbor is growing.
Within the Jaxt rear between 15 and
20 have been drowned, and the number
Ix now Increased by the drowning of

body. Her husband hax been arrested | Pats. oper of the oyster scoop Cole-
und i now in the Walker county, Ga, [man The negro was in the bow of
Jatt charged with the murder {the boat, trying to clear the sall from
The sheriff MAY H duughters of the light nt the cove of Sullivan's im.
Roberts assert ponttively that he killed | land, when he fell into the water and
hix wife. Mrs. Robert wax 50 years of | Was drowned before he could be creg-
age. She leaves two single and one |cued. The current runs strong at thix
Inarried daughter. point und {tt ds Itkely that the body
a acti ane wax carried to ses, as all efforts to re-
Fireman Jumped Overboard. cover the body have proved friutless,
New port News, Va, Jun, 14.—The / >>
chief Wreman of the British steamer ! AN INCKENDIARY FIRE.

Rappahannock committed  sufeide by
leaping Into Hampton Roads from the
deck of the vessel thin afternoon,
The Rappahannock was om her way
to seu. When the steamer wae
opposite Fort: Monroe, the fireman wax
seen to plunge overboard, The /hody
has not. yet been, recovered, The Rap-
pahannock lay to for an hour to report

the case and make # weurch for the
body, the -oceeded on her voyage,

svatmneeof.t
known to the
cume ashore,

Alabama Negro Hanged.
- Mobile, Ala., Jan. 14.—Ira Carter,
colored, was hanged at Bt. Stephens,
Ala., today for the murder of Conduc-
tor 8S. W. Askew on an excursion train
at Yelldw Pine, Ala., on the Mobile and
Onlo railway on. the night of May 24,
1904. This is the first legal hanging tn
in 20 years,

“Nor
over \the

Hatteras

Negro Robbed Postoffice and Fired
Bullding-—White Wap Impiiconted,
Thomasville, Ga, Jan. 14.~Tournine,
a xmall Jumber town nine miles north
of Thomasville, was visited. today by
an incendiary fire which destroyed the
“‘postomee and the bulldings and .com-
mixsary of the Touratne. mills. | The
office was robbed by Walter Mitchelt>
4 negro, who took money, stamps pnd
koods and fired the postoffice. , Mitchell
has confessed and says he was: em-
ployed by a white merchant at Tou-
aine, Both have been arrested: and
pire in the gounty jail The loss by fire

heavy. No {Snsurance. ©" » + i

nite 4 Pa

Stinte Alumni Association. ‘' |
jal to The State. mt ; 4
arleston, Jan, 14—Ans @ result of
th¢/ visit here ‘of Dr. A. V. Raymond,
exident of Union college, of (Bchnec-
tddy, N. Y., after attending: the South

uals %

State atumni~- assoclation’ has’. been
formed, with Rev.. Dr. C. 8.-Vedder. of
the, Huguenot church. as\:president;
Duncan..Ray of Columbia, vice -presj-
dent and Prof, G..J, Colcock ofthe Fore
ter-Milttary academy as: sec

rer,i.' oh. te

from the

y

circa /88

haves

». Mr.

“arolina college centennial exercises, a

ary and:

ace, All,
“What waa that p
“T deciine to state
*'“Was it nevere?"
“As IT remember |
“Was it death?”
“IT don't. belleve I «
more questions on t
“A. A. Noon of Proy
fled there waa noth
ment-obligation-tak
Ulity: tocthe nation
ment: hai {
Chairman Burrow
also in regard to th
inony, and he declin
ture, He would not
Wak a change . In
whether there was «

tached) to revealing
place or anything ¢
obtigntionn,, :

J. H. Brady, chatr:
Hon State ccomimilt:
examined concerinin;
campaign conducted
last nutumin. Mr,
epered ial unlawful
been Introduced tn

“We are poling to
sald, “und put tt up
(to prosecute” thane
knew during the es
world not do dt Td
ao tt now. White T
prokecute any of the
I would not lay a st
Senator Dubois. pro:

Judge James A, M
Justice of the supre
testified fn regard ¢
fore Alin of Mormons
Jawful cohabltation.
Kent more than 200 ¢
Before the mantflests
mists would not pre
laws of the future
been taught that po
but after the manif
would give the pro:
Insxtences were not
opinion, polygamour
prauctlonlly ceased,

Judge -Minor- expr
that President Josep!
everything he ean to
church out of politie
an honest man’ he

Oe
AVFAIRS IN)

Meetings Held By ¢
anderni——A Dilape
Specini to The Sts
Yorkville, Jan. 14
Crusaders, composed
ladicw and am ditthe |
quarters are at Riel
been holding nightly
court house for a wer
an oenrnest, conseclent:

meethngk are well ut
attend who rarely
ehurch services,

The talks by the «
are Impressive and fr
tmiixie im good, Rey
newly uppointed Met
the York elreult, wow
Ing and made no pn
which wae greatly

The dixpensary cou
trol met yenterduy
John S. Sandifer to
place of the late Mr,
may be a week before
opened, a the. nece:
have to be “fixed up
again,

M?. Sandifer is aon
acter, temperate and
his dealings and will
position according
ter of the Jaw, For
he has insde.a moat ;
sheriff for York cour
Clarence, A. H
upon the dutles of ag:
ern” railway at this
brother of Mr, 4,’ L.
some years filled this
S$, Clarke, who das
agent for’ this com)
years, will go to Hig

by a

. .. Reached to Prey

Wilmington, N.C
echooner Lizzie KE.
New York to, Jackso:
60 of fertilizer and ce
Into. Southport “Jan.
aftdér_ being struck on
of |. Fryingpan ~* show
weather, night of 111
of the vessel required
tention-of the j¢rew 5
nights: to. prevent h
crew..was. exhausted

- Southport; +-where. +:

beachéd.to ‘prevent hi
ws i ne Rr

>

~~

a

j
{
}

—

EE Le

i was offe
silent supplication.
The reiece

offered by hie execution. Officers made
a path through the crowd and Chariee-
ton walked fearlessly dows the double
line and marched with nteady tread
upon the gsilows

ON THE GALLOWS.

Two of the colored ministers tollowed
him upon the gallows and ®&
prayer was offered, after. which the
minieters went ‘down and we com
| demned man’ wes jeft.. with Deputy

was unmoved by this process, glancing
coolly down epon the crowd and mak-
oocasionsal :

ein’ i
“gavially/ jnteligens and his is
ton, wae arove that ot the svereae
penta. At the. time of the hitting of
Mardy he wee seorking at Horse |
Creek but snortiy before {hat me be
‘nad been working et Iuhkoods, aad!
i, wae there that the trouble bet wees
Lei met and Hardy began, The ailtiog
atures oo First avenue to this uty, |
fet below Nineteenth street. Hanty.;
who war & ope-leagcel nego. wan ant |
foatdon, who emptied ne]

hed ander tie wo that be could take
, Chariestsd claimed that Hardy nad
toned to wilt him end
to save his owe Vie.
woe ee shite pe ie an

a)


CHESLEY, Robert P., white, hanged Montgomery , AL, 2/1/1842.

"To his Excellency Benjamin Fitzpatrick, Governor of the State of
Alabama-

The petition of the undersigned respectfully sheweth unto your
Excellency that during the Term of the Circuit Court of Montgomery
County new in session, Robert P. Chesley was convicted of the
murder of George W. Newell.

The offence was charged to have been committed in Autauga County
and was tried in Montgomery Copunty on a change of venue.

The testimony on which he was convicted was entirely
circumstantial.

The undersigned do not believe that under the circumnstances
proven on the trial, that the Prisoner should escape from
punishmnent and believing that life in the Penitentiary would be
sufficient, fit and proper punishment for the crime of which he
was convicted, would respectfully and earnestly solicit your
Excellency to commute the punishment of death to imprisonment in
the Penitentiary for life.

As the Penitentiary Code has just gone into operation and as the
Prisoner is anxious that his plunishment should be changed to
confinement therein for life, (and which is a civil death), we hope
that the amelioration of the late penal code will be extended to
this unfortunate man.

And as in duty bound your petitioners will etc, etc, etc

/s/ Henry W. Hilliard, George Cc. Ball, Ch. Crommelin, Geo.
Goldthwaite, Jack Thorington, John W. Walshe, James E. Belser,
Thomas Williams, Jr. (writing after his signature: 'I have signed
this petition because I believe the prisoner an idiot)'), J. P.
Saffold, (?), (?), David Files, (?) M. Riggs, O> J> Noyes, Jos.
Case, L. W. Chappell, (?) Gayle, G. R. G. Morgan, V. P. Haswell, L.
Sam Rice, David Blair, H. P. (?), Wm. B. Seawell, (?), H. C.
Holmes, W. R. McCrary, H. A. S. C. Whyte, John Mc(?), Benjamin
Franklin, Gilbert C. Russell, (?) Ligon, Jno. (?), R. W. Gayle,
J. S. M(?), (?), Abm. Crooken, Alexander Wilson, E. L. (?),

John Goldsmith, C. M. Bolton, (?), Joseph Bryan, James E. (?),

H. Berry Noyes, John J. Denmark, C. M. Godbold."

(Papers of Governor Benjamin Fitzpatrick, Alabama Department of
Archives and History, Montgomery, Alabama.


JN F (og , |
Md bed lxeliscey Sty dass Vii file tere buih She dele yf
ab eed. -

a Nee TI Viele Oh of the fucleldiguell (hee Gf ally ( teceeede

“ : s ; ?

file | Your Aeietivicgiglffa siitlig liee Wu Gf Le Le Lc Lote LK oO |

Mi uly heb Motul Jie Lew edd ta’ Mobep i }@ Mad ley (Md Lthdicledl

of tl feck VRE W hbrell . | Jon
View, Uf lute ied Witged Phin bite Kb ettwllel ee Lbetonegn Criull

Lud Lold feech ps ULG Oth ketene Wh Le dh dug. . Wreck a

/
Te hibit uy bw 6 he Wad ndiclet Mid L | Lbitieud Cerssles
Situ fcltidigued Cy Lok bheoe flict hty hey Ldtlindl ated Atetie
te Mee Dekh, Mek the Prete Yes wet? Meas u fri, fait beaece dees
Mleviug Mak piifleDruink fie Ld tia the Pluctidte ae

Myficwnk fA Qud flop fluuthauk for the Mew Sroleck he
Mi hed Lbroteled; erutil fil feted alii hak Lilypie falecck YOu

ary Utste bed Gidtk Gow juts oer atin Lt ad fl
Files ter 2 puycwus flak bed fltcwiphinw< Mlatd be eh augcA. Le
louffituunwk fbr fn Life, ( tud whe Wa tol Lente.)
foe heefte Lak the beuffk Ktled Wichitalen. tbe Lei lia al
“tlt loite be wludedl bb hed furfitliual wie. Lat ad
tlw Maly bytiad Yow Tillis Mit A ot

a er i

| — Tae / tito Woe Csty-~~
7 7 | fee ‘ .


i | eee : .. . er Apt a a0 si Sige ’
Mi, oaS ees 7 |
- ie al “2p. 27) Bs oH ; / ° / f
Cob on- > ; " rh,

SUPREME COURT
[Jones, pro ami, y. Fellows et al.]

Here this opinion might close. It ig contended, howe
for appellant, that in his final settlement Fellows was allow

a credit of $2,000 for confederate bonds turned over to
his successor, | i

1863, August’ 7.
$2,000.” This item

duced the aggregate of credits, $6,192.07
ted, the credit

side of that account is charced against Fell
“From proceeds of sale of house and lot in Se

°
3 ?

pons on $2,000 of Confederate bonds, $80
$3,104.65. This sum, taken from
leave $3,087.42, as the total debits
have been charged. Subtracted from total credits,
leaves a surplus of credits over

which Fellows was improperly charged on his final
ment with his successor.

from the debit account ?
being rejected as

tems

was the one-fourth interest belonging
ized from the sale of lot in Selma
after the war, she repudiated this

and recovered the value of her,one- fourth interest, $2,000, in
lawful money of the United States. She thus realized for
her fourth interest in this lot its value in lawful money, and
$1,104.65, excess of collections made from Fellows in his set-
tlement. And the testimony shows that the $2,000 invested
in the Confederate bonds purchased from Lewis Davis, were
part of the money derived from the illegal sale of the Selma
lot, which complainant repudiated, and thereby not onl
prevented it from injuring her, but disarmed herself from
complaining of Fellows for
not be heard to renounce the
able, at the same time, for im
ducts. She can not, at on
and against the sale.

e have indulged in the reflections shown above, not be-
cause the question is legitimately before us in this case. It
is not; for Fellows had made n lawful settlement, and was
discharged. Our purpose is to show that even if we could
go behind that settlement, Mr. Fellows could not be held
accountable for the $2,000 invested in Confederate bonds.—
See Horn v. Lockhart, 17 Wall. 580.

The decree of the chancellor is affirmed.
Vou. Lyi,

sale, and hold Fellows account-
providence in investing its pro-
e and the same time, claim under

Sree

15th January, 1864, coy.

: otal,
gross debits, $6,192.07, wil},
with which Fellows Should -
$4,192.07,
debits of $1,104.65, with
settle.
But why take these two items
The Confederate bonds, $2,000,
a credit, of course the interest realized on
. them, $80, should be rejected as a debit. The item, $3,024.65,
to complainant, rea).
- The record shows that,
sale as not binding on her,

cee
3

its illegal investment. She can

ct als. v. The State.

‘Childs, :
: Indictment for Murder.

i i shad an-
—Where 2 witness
4 1 or ining witness ; predicute.— WA Sieg owed
fe eels bara ie whether he knew me Pedi a
Be pact rental and answer was a su roa mia
* eae oe to testify to the good character 0
¢ the former witness to —
sagitempted to be impeacued. ae : on croxtoxamina
pass cxoninctin ee ok affecting his ore PS head on
See Soc <6 e 3 fe ne ety
haa ey of eatin fre a store,” in a cer eae We coe ani
pet ag on haters a justice of the peace, anc
Lto having been be

i ; stantial evidence ; infer-
Bee wies made of to justify conviction ; cra NE ee the evi-
Fee ceapecting another party of the deed. —To ssonable doubt of guilt;
ror eaeadabed pnenpll G certainty, every reason
“must exclude, to ¢

the evidence 1S circumstantia the eireumstance on-
. : . 1

i y hypothesis but
‘tainty, every Hypo {
nd complete as to exclude, to a moral —, “the jay must convict
¢ ,

sup to this me - person has been

ail vay suference from the proof that some other person has been

Beor any. TOO oshecwie it is their duty to acquit, -

‘of t rime, ‘ =} 3 oa

pected ree cag other person is pe saagpinre absence. of meen pe poaps
pro ; winery ain cas * idence ‘

4. Charge ; what Bethe jaty in substance, that if eet “that no one else

: Se Boe eramiteed the crime, “if it be a f

+ defendants :

is a Cl tance
e crime, such fact is a he
n charged with or nes Ser enly in cases like the Sees ca
alah beatae b ie absence of cirsemstaness es ne tas
rs from the proof ane to strengthen the evidence, 0 ine eet es
the guilty agent, Eweor the circumstances in this ome ita
“sed “(The charge apr he 698, 707), and this court aii pga oem
eens a ane pte Ooi confines the age Ap meaner en jos Sagar he
trumstantial, point i oe ee at, if inno-
a stantial 43 any a he the oni ot len a _ Z ig
8 Pere a crobat i ome trace, or circumst .
of snot Pro generating a doubt seine oe ak a charge was given
aS G presumplion that charge was proper.—W e
me ;

e1ng , es l hic 1% Wot ie OY er—ah h b re) é ions
ases In W d t e€ ill f exceptio

-eX ina-
It is not error, on cross-exam1

a the Circuit Court of Henry.

, .H.D. CLayron. b
ee eeeoreants, Jerry Obiids, Isaac Childs, and Jaco

; 876, of Dale county,
wae the spring term, 1 ue hange
‘ ie sare male ee ed You They See areeiee
sbue Sto the county of Henry, where, “at : der in the first
ene ah : “were tried and convicted o one a toth of
2 es Oacaged to be hanged on Friday, the
tober, following.

>


‘ (abe
;

~ SUPREME COURT
“© [Childs v. The State. ]

that the answer to the cross-interrogatory showed that wit-
ness did not know the character of Williams at all.

tS Boe eee

: [Dec. Term,

[Hadley v. The State.]

ee as stated, the bill of exceptions informs us that defend-
ants asked of the court, in writing, the charge that “if the

2-3. The indictment against two of the defendants for _ jury believe the evidence, they will find the defendants a
larceny, in which the person they are charged with having’ | = pullty 3”. which is equivalent to the instruction that, thoug ?
slain was prosecutrix, with intent to connect it with threats MM “y believe the evidence, or upon the evidence, they mus
on their part that she should not live to testify in that d the defendants not guilty. If the question aes th ned
cause,—was not necessary, though legitimate evidence in the one in this court, we should be inclined to hold, + ed *
present cause. If put in, the proper mode of proving it was harge designed to take advantage of the qaseee, W b ex
_by an exemplification, duly certified. The original indict- the venue of an offense were proved or not, shou € so
ment should not have been allowed to be taken away from framed as to bring that matter to the attention of the court.
the Circuit Court of Dale county, to which it belonged. “The rules of law are to be used so as to effectuate justice,
Such documents are of too important a character to be car- not to prevent it. But, it having several times been decided
ried away from the proper depository for them. It may be hat a defendant may take advantage of the omission = _~
doubted, also, whether it was sufficiently proved to be the oduce or set forth the evidence of such a (ager a enan er Ps
original to make it admissible in evidence as such. As, : genera! charge or exception, we do not feel at liberty to

. however, it, and the evidence relating to it, were afterwards epart from the practice thus established, in a case of capital
- withdrawn from the jury; and they were, we must presume,

felony, like the present. Ifthe court did not err in certify-
instructed not to consider it as evidence in the cause, the

ing that the bill of exceptions in this cause contains all the
exception to its introduction cannot be sustained. Such a evidence that was submitted to the jury, we must hold that
practice, though, ought to be avoided, because it may be

it-erred in not giving the charge in question. The evidence
difficult, sometimes, for jurors to prevent evidence that has * set forth did not entitle the State to a verdict of guilty
. - been improperly before them from having some influence in

against the defendants. :

shaping the verdict they must render. Let the judgment of the Circuit Court be reversed, and the
4. We regret to find in this record—what we have had to use remanded. But the defendants must remain in cus-

speak of so often, in the State cases brought before this -tody, until discharged by due course of law.
court—the omission in a bill of exceptions, which professes Sake ee
to set out all the evidence that was adduced against the
accused, of any mention of the county in which the offense
was committed. It is only in a court of the county in which
a crime was perpetrated, that an indictment for it can be
found. That on which the present prosecution rests was
returned by a grand jury of Dale county, into a Circuit Court
<of that county; and the cause was transferred, upon appli-
“ation of the accused, to the Circuit Court of Henry county.
To sustain its jurisdiction to render judgment, it was there-
fore necessary to be shown that the crime charged was
perpetrated in Dale county. Yet, in all the testimony of
more than a dozen witnesses, it does not appear that this
essential particular was proved by any body. The high
character of the judge who presided at the trial, makes it
very improbable that such evidence was not introduced. It
was doubtless by inadvertence only, or a too trustful reliance
upon the diligence of the counsel for the State, that he has
signed a bill of exceptions, declaring it contains all the evi-
dence in the cause, but which does not contain any touching
the venue of the offense. However that may be, we must

consider the case as it appears by the record. Upon the
Vou. LY.

rity

eittt
Ht P28

wy
‘

sTheit!

:
y

Ered
See

.

eheitt
SaPapeebe reese

+ o. ele
PTET

+
Tee

.

Pes
wie
—s
Paes
Pome
vied
ome
oer
ae
=
ane
are
+n
pees
Pry
fees
h- oead
as
+.
nee:
oo
epee
ee
‘me?
selas
sae
eet’
ae
or
age
ay te
tu

et

| Hadley v. The State.

= 6 Indictment for Murder. — 16 Zi

it beet EAE}

3
Hie

2%

~ = 1. Presumption of matice from use of deadly weapon.—This court adheres to (7 /
the principle decided in the case of Murphy v. The State (37 Ala. 142), which poe

supported by all the old writers on criminal law, that in cases of homicide >
law presumes malice from the use of a deadly weapon, and casts on the

defendant the onus of repelling the presumption, unless the evidence which

proves the killing shows also that it was done without malice.

2. |.When witness may testify to churacter.—A witness may be competent to

“testify as to the character of a person in the neighborhood in which he lives, _

although he has never heard it discussed ; but, if he says that he ‘does not

“know his general reputation in the neighborhood,” although he has known him

“all his life, he is not competent to testify as to his character. ;

8.” Pending civil suits for damages ; relevancy and admissibility of.—On a trial

Under an indictment for murder, the records of several pending civil suits

&gninst the defendants, brought by the widow and next of kin, as the personal

representatives of the deceased, and of other relatives who were killed in the

_ *me rencontre, are not admissible evidence for the defense, to discredit the

: tiffs therein as witnesses, nor for any other purpose.

;
.

Hytity

ify hg PETES
SREARRLE

fit

thatiictits

He

t
‘

+
$

ib

¥
igi
be ety tet

$


oe CLORR* te Ne

tenet

etirtaeipeatnnedietonmacnearsae Re A A
Oe AAACN te Ls Ai athe

3500 SUPREME COURT [Dec. Term,

(Childs et al. v. The State. ]

The proof on the trial was, thut Mrs. Rosamond You was
shot with a gun, in her own house, in the night time, by some

degree. The evidence connecting defendants with the crime
was mostly circumstantial, Among other witnesses, one J.
R. Kelly was introduced by the State, and was asked by the
State’s counsel whether he knew the general character of one
Mingo Williams ?—said Williams. having been examined by
the State, and to impeach whom an effort had been made by
defendants. Objection was made to the form of such ques-

should be limited to the said Kelly’s knowledge of the said
Williams’ character for truth and veracity. The court over-
ruled the objection, and the defendants excepted. The wit-
ness then testified that he knew the eneral character of said
Williams, which was good, and that from such knowledve he,
Kelly, would believe said Williams on oath. One Jake
McIntyre, a witness for defendants, being on the stand, was
asked by the State’s counsel, on cross-examination, “have
you not been convicted of larceny?” The defendants’ coun-
sel inquired, “where?” and the State’s counsel, after con-
ferring with the prosecutor, answered, “from a store in New-
ton.” The defendants’ counsel then inquired, if “in a court
of justice ?” to which the State’s counsel answered, “yes.”
The defendants’ counsel then objected to the question on
the ground that the fact solicited by the question was capa-
ble of higher proof—by record evidence. The question was
allowed, and defendants excepted ; whereupon the witness
answered, that he had pleaded guilty, in a justice’s court in
Dale county, of stealing. :

Upon the conelusion of the evidence, the court charged
the jury, among other things, that, “If there is evidence
tending to convict the defendants, the fact, if it be a fact,
that no one else has been charged with or suspected of the
crime, is a circumstance to be considered,” to which the de-
fendants excepted. There was no evidence that any one else

was charged with or suspected of the crime alleged in the
indictment.

J. G. Cowan, and J. A. CorBeTt, for appellants.—1. It was
error to try the defendants the first week of court. ‘The act
changing the term of Henry Circuit Court from two weeks
to one week (acts 1876-7) is void—the journal of the Senate
nowhere showing a compliance, in its enactment, with the
requirements of § 27, Art. 4, of the Constitution.

2. The court erred in overruling objection to the form of
VoL. LYIII.

OF ALABAMA. oe oak
[Childs et al. v. The State.) 3 + f
fon asked the witness eT ose. dissenting opinion 0
Aeono J. in Ward v. State, 28 abe: “ede” -
poe? spurt erred in permitting the State to Pee
rre’s conviction of crime in the manner set le an ea 1
me oe nviction was susceptible of higher oF vA 298.
aor Ey. § 457; Newcomb v. Griswold, 24 N. , cee come
ay he fact that the conviction was before a Justice “th t g. 4698
‘a 2 not change the rule. The court must a ve £ eateal
“9 f th Code requires justices to keep dockets o justice’s
Se “tried before them. By virtue of said section a : tutory
ae is, in all criminal proceedings had before wh ve 105.
art of record.—See, also, Ware v. Robinson, :

ur reas i f the charge
4. The court erred in giving that portion o Tk is dub-

calculated to mislead the jury. 1t1s suk
Be at Hall v, The State, 40 Ala., upon this oe +
t correct authority. Great injustice might ori Py ie
fendants, who, being in jail, are prevent fou ng
fforts towards the detection of the rea pe ay naa a
Il’s case, supra, the defendant was chargec He are anya
- f his wife,‘and if this court adheres to t oa ne: 2
a i cise, it should be confined in its application to

character.

Joun W. A. SANFORD, Attorney-General, a oer ica
Bh the newevel dharacter af a witness. Sorrell ». Craig,
rning the general charac .
1 838.8" Ward v. The State, 28 Ala. ri Perris
2..The court did not err in permitting phe W pore ae
ked, “ Have you not pleaded guilty to stealing heat
Newton?” “The contents of pleadings ine no ae oe
Sject of in uiry. The witness was questioned mer ve he
* a Snagit The fact of the ort, of nr ee
ot its contents, was all that was involved. ci oe
-oduction of the plea was unnecessary.—Nea
Set i he charge to which
3. +t did not err in that part of the c ag
ef Bi sic cuceptod See Hall v. State, 40 Ala. 700, et seq

T is obj i h as the trial and
.—It is objected that, imasmuc :
Paviction in this caine were had during the first week o

j riction should be
enry Circuit Court, the judgment of conviction s

i term of that court
‘Teversed, because the act, pecteaes hg A ees cok

- e—Pamp .
ee ee et of the Senate to have been signed by

i house
L * in the presence of the :
Re cr es noted es after the title had been pub

igning.” ituti 1875,
cly read immediately before signing.” Constitution of


7. wee ot f ¥ ang ‘3 oe. é

rah Sak Oty aa oe Ve reg RMS a tae 0 co i oie Cate Pin, Ma goes

= # ¢ 7s : cae eat ooege | *. Nits. sae UN Pye hiner) Aspe Be oh
nh ae bE He Be EP earls Ede eae ate

352 SUPREME COURT

{Childs et al. v. The State.]

Art. 4, See. 27... We know not why, nor on what inf i
Le point is urged. On page 318 of the Senate Toucaal
is “| session, it is shown that the objection is not founded on
We do not think counsel should take such positi
apes poove, and cast on us the labor of sore cntae hee
aap erate Ley good ground, or well founded belief, in
Tn what we have said, we do not wish to be P
holding that a trial and conviction in a pb gi oe
during the first week of a court, which is required b law to
zt we faim would, for that reason, be reversed. ‘

. {here was no error in allowing the witne 7
testify to the good character of the Ta tboae, Misia Willen.
who had been attempted to be impeached. Kelly had an-
swered affirmatively the question, that he knew the general
ree of said Lesa and this, under the rulings of

urt, was a sufficien i i 71
ard Vad Sigh oe A i eee to let in the evidence.

. Neither do we think there was any errror i ‘
the question to be asked the witness, MeIntyre Mit he had
not pleaded guilty of stealing from a store in N ewton.” The
trial referred to was had before a justice of the peace ; it was
not shown that any record was made of it, and there was no
attempt to prove his conviction of the offense, so as to show
him incompetent to testify. -The question was put on cross-
examination, with the evident design of affecting his credi-
bility—nothing more. For that purpose, on cross-examina-
tion, 1f was competent.—See Neal v. The State, 53 Ala. 465.

3-4. The charge excepted to is, in substance, the same as
-that given in the case of Hall v. The State, 40 Ala. 698, 707.
Tris court, while criticising that charge, nevertheless refused
to reverse the ruling of the Circuit Court on that question.
The court added: “The weight of the absence of such evi-
dence is increased by the probability that if any other person
had perpetrated the deed, there would have been discovered
traces of it. ‘Ina criminal case (says Starkie), where all
the circumstances of time, place, motive, means, opportunity
and conduct concur in pointing out the accused as the per-
petrator of an act of violence, the force of such circumstan-
tial evidence is materially strengthened by the total absence
of any trace or vestige of another agent, although, had any
other existed, he must have been connected with the perpe-
tration of the crime, by motive, means and opportunity, and
by circumstances necessarily accompanying such acts which
usually leave manifest traces behind them.”

ene Gee of Hall, supra, in its undisputed facts, was of

[Dec. Term,

OF ALABAMA. -
{Childs et al. v. The State.]

character as that the absence of criminating circum-
snces, pointing to some other person as the guilty agent,
Jd tend to strengthen, in the inquiries of any honest mind,
“circumstantial evidence of guilt, which was in proof
st him. He was indicted for the murder of his wife,
ho had died of violence in the night time, in her own house,
‘accused being at home; and, it was shown that at the
@ of the violence, he must have been in or near his resi-
ce. Under these circumstances, if another had done the
d, it is probable the accused could have shown some fact
‘circumstance in supportof such theory. His failure to do
6 in that case, was ruled to be, “a circumstance to be con-
red: by the jury as evidence against the defendant.” But
in that case, this court said the charge was liable to
ead the jury, and that it might have been improved in

853

therein presented. But we think the charge given in this
asé would be improper in cases otherwise cireumstanced,
nd that its general tendency would be to mislead. As a

rtainty every reasonable doubt of the guilt of the accused.”
st. on Ev. $440; Boots Coleman v. State, at the present
m. And when the evidence is circumstantial, the circum-
nees must be so connected and complete as to exclude, to
moral certainty, every hypothesis but that of his guilt. Tf
, proof comes up to this measure, then it is the duty of
e jury to convict, independent of any inference to be drawn
from the absence of proof that some other person has been
sharged with or suspected of the crime. On the other hand,
the proof does not come up to this full measure, then it 1s
e duty of the jury to acquit, although there may be no
proof that some other person is charged with or suspected
the commission of the offense. We, therefore, confine the
inciple asserted in Hall against the State, to cases in which
“the evidence is circumstantial, pointing strongly to the cuilt
“of the accused, and proving him to have been at a place so
hear to the scene of the crime as that, if innocent, he could
obably furnish some trace, or circumstance, pointing to the
~~ guilt of another, or generating a doubt of his own guilty
ency. Thus explained, we adhere to the principle asserted
Hall v. The State, supra. :
!°Lest what is said above may be misunderstood, we will
‘add that it is only when the suspicion that another was_ the

offender springs out of facts or circumstances legitimately in
(23)


a ee ee ee

Mrs. Eugene Clem
Scared By Intruder

A negro identified as William

Clark of Belle Mina, is in the ' Deputy Bill Johnson arrived on
county jail in Athens today under the scene and found the negro in

a charge of feloniously entering the custody of two men, Thomas
the home of Eugene Clem and of Thonias and Ben Leopard who had
rebbery. The circumstances sur- captured him near French's MMi,
rounsing the case were harrowing about three miles from the scene!
to Mrs. Clem, who returned from of the burglary. He had in his! |
7 Short visit to the home of possession an overcoat, a leather |
Goorge Norton and found the ne- coat and a Waltham watch, all ,
gro in her home, taken from the Clem home, and “|

She entered the house aid built |razoi. He was taken into the pres-

a fire and started to enter another “|ence of Mrs. Clem, who identified
room, when the negro sprang from , him as the intruder. She stated
behind a door and seized her, ac- | that Clark had worked for Mr.
cording to her somewhat icoher- | Clem about @ year ag and was
ent statement to officers. He .| Known in the neighborhood. |
choked her and threw a handful of ! Deputy Johnson hurried the ne-/|t
sinoking tobacco hite her eyes. She | gro away from a rapily rowan | ‘
| frantically begged the intruder to | crowd’ to avoid any trouble, and|
) Felouse her and tahe anything it "| brought him to Athens.

| the house he wanied. He finally Clark has as yet made no direct |'
aRSET tad and turaed  Birs. te _ Statement of his purpose in Lefous |
jivcse and began Aeurciiag thie) ‘ing the Clem home, but ft is he. |
home. Mrs. Clem fled by way of | ; Heved that he found no one was at |,
a window and alarmed a nan ‘home and entered the house for |
Officers were hhastliy sunimoned

the purpose of burglarizing It. I
and prompt response was made by

|
the shériff’s force. The Clem gS |
‘home is seven miles from Athens, | 7s R |
| on the Nick Davis road and by the &
time officers arrived the negro had!

departed. Mrs. Clem was in such A I NB AM A

@ nervous condition from the;
fright and rough treatment she

had received that it was necessary, (Ue
to call a physician. Other than the! %
effects of the tobacco in her eyes, | G 2
\bruises from the choking and the; of

nervous effects of the fright, Mrs. / ( | ))

Clem was not harmed.

's
¢

Clank, Willian, black, elec, AL

260 0 Ala, O

ant, though having ‘knowledge of said de-
fects, failed and omitted to inform said
tenant of said defects’; and that plain-
tiff, as such invited guest, while walking
on said porch, and as a proximate result
of said defective condition, was aubes as
averred,

Further amendment to counts 2 and 3,
after demurrer overruled, was as fol-
lows: “Plaintiff amends count(s) 2 and
3 by striking the words ‘the defendant
knew that said defects existed at the
time of the letting’, and adds to the said
counts 2 and 3 the words, ‘defendant knew
before plaintiff was injured of each de-
fect"™,

J. N. Powell, of Hartselle, and Newton
B. Powell, of Decatur, for appellant.

Smyer, Smyer & Bainbridge, of Birming-
ham, and J. G.-Rankin and Thos. S.
Woodroof, both of Athens, for appellee. .

THOMAS, Justice.

The appeal is on non-suit and judgment.
Code, § 6431. Epperson v. First Nation-
al Bank of Reform, 209 Ala. 12, 95 So.
343.

[1] A bill of exceptions is not neces-
sary. Schillinger v. Wickersham, 199 Ala.
612, 75 So. 11; Berlin Machine Works
v. Ewart Lumber Co., 184 Ala. 272, 279,
63 So. 567.

[2] As to the tenant, his guests, serv-
ants or others entering under his title, the
landlord, in the absence of a covenant to
repair, is liable only for injuries resulting
from a latent defect known to him at the
time of the leasing, and which he con-
ceals from the tenant. Jones v. Tennes-
see Land Co., 234 Ala. 25, 173 So. 233;
Prudential Ins. Co. v. Zeidler, 233 Ala.
328, 171 So. 634. |

[3] Under the rules that obtain, a count
of the ‘complaint is defective for failing
to allege such essential element in a suit
based on an action ex delicto growing out
of injury received from latent defects by
a tenant, servant or his guest on rented
premises. .

Appellant amended counts 2 and 3 of the
complaint by striking therefrom the words
“the defendant knew that said defect ex-
isted at the time of the letting.” No such
allegation was contained in count 1.

The sufficiency of the several counts

was challenged by demurrer raising this
proposition of law. dt, follows that. appel~

T 2 ms
Limest

torne) 1/17/1941,

(195 SOUTHERN REPORTER ; :)

lant did not state a cause of action in any
one of the counts, and the court properly
sustained demurrer thereto.

The judgment of the circuit court is af-
firmed. ,

Affirmed.

“ANDERSON, i 5, and sarees and
KNIGHT, JJ., concur,

© « KEY NUMBER SYSTEM

“sums

CLARK v. STATE.
8 Diy. 946.

Supreme Court of Alabama,
- April 4, 1940, |

!. Criminal law @>641(3)

In rape prosecution, court must appoint
attorneys to defend accused, if accused is
not able to employ counsel, since jury may,
in its discretion, punish by death, Code
1928, § 5407.

2. Infants 68

Overruling motion to transfer to juve-
nile court a rape prosecution of minor over
16 and under 18 years of age, on ground:
that transfer would not be in the interest
of justice and of the public welfare, was
not error, Gen.Acts 1923, p. 296.,

3. Rape €=51(1) ©
Evidence held to authorize conviction of
rape.

4. Criminal law =1144(4)

Conviction would not be reversed on
ground that defendant’s original counsel,
through fear for their personal safety or
other personal reasons, did not file plea
in abatement which had been prepared, al-
leging exclusion of negroes from jury box
and jury rolls, since court would not ascribe
improper motives to counsel, and would pre-
sume that plea would have been filed if
evidence had been sufficient to justify such
action.

5. Criminal law 301 -

If plea in abatement is not filed before
pleading to the merits or in bar, it is dis-
cretionary with trial court whether to al-
low withdrawal of plea of not guilty and.
filing of Plea in abatement,

hi
hat
Ns
M
m
zh
aa
a
fd.
£
re

6. Jury

Evi:
drawn ft
presumi:.
sufficien
clusion
rolls, sv

7.: Jury
The
extent |.
mission,
ercising
race neg
ification:

Appei
County ;
o Willis
convicte

Affirn

Grou
as follo\
evidenc.
and the
the weig
both the

The |
refused
ee
able sup)
fendant,

1g, Y
unless 1]
able sup;
"8, I
evidence
defendai
'_G. W.
for appc

Thos. .
Loeb, As

KNIG

The a
dicted by
ty, impa:
cuit cou:
rape.

The ji
vember
raigned 1
personal!
tended b
raignme!
of “not ;
minutes


262 = Ala.

A

overruled.” In this there was no error.

General Acts of Legislature 1923, p, 296. .

In view of the insistence of defendant’s
present counsel, who came into the. case
after the conviction and sentence of the
defendant, that the evidence was insuffi-
cient upon which to convict the defendant
of rape, we deem it not amiss to set out,
rather at length, the substance of the state’s
evidence, and all of the defendant's evi-
dence.

The first witness called and examined by
the state was: Leacie Clem, the woman al-
leged to have been raped, and she testified
in substance: That she knew the defend-
ant, William Clark, that for about two
years he lived on her father-in-law’s place,
and that she saw him frequently, and
knew him when she saw him; that on the
day the occurrence took place she had been
down to her father-in-law’s house; that
when she returned to her house, “about a
quarter of nine, she went into the kitchen,
and then on through the house, and came
back to the bathroom; that after being in
the bathroom about a minute she noticed
the door was pulled out more than usual,”
and that she pulled the door farther out,
and saw the defendant behind the door.
That she saw it was a colored man, but did
not know who it was at that time; that she
screamed and ran towards her bedroom,
and the defendant ran after her and caught
her on the back and threw her down, chok-
ing her. That she struggled a few minutes,
and he threw her down on the floor, and
that ‘she asked him not to kill her, but he
kept choking her, and she became uncon-
scious. That when she regained conscious-
ness, the defendant was on top of her; that
he had torn her clothes off and was in the
act of raping her; that he did this while
she was unconscious, and when she “came
to” he was in the act of having intercourse
with her; that she screamed and tried to
get away, and he started to choking her
again, and that she told him to take any-
thing in the house that he wanted but “just
not to kill me,” and “that is when he drug
me by the hair of the head and I was close
to the dresser and he pulled me up to the
dresser and put nose drops and powder in
my eyes took his fingers and rubbed it in
my eyes and left me and locked both doors
to the room I was in, and when I woke up
from my unconsciousness I knew that his
privates had penetrated my _ privates,”
That she recognized defendant before she

195 SOUTHERN REPORTER

became unconscious. She further- testified:
That when “she came to herself” she was
trying to get her eyes open so she could see,
that she then ran out of the house to the
home of Mrs. Norton, and gave the alarm.
That the defendant took her -husband’s
overcoat and leather jacket and the watch
she had on at the trial, and he also took a
fountain pen. She further testified. that
the defendant made scars on her neck, her
legs, on both knees, elbows: and on her
head, and that the scars were still’ there.
She further testified that she got the watch
back from the officers...) 0 iit

The arresting officer, Johnson,’ testified
that he got the watch which Mrs, Clem tes-
tified the defendant had taken from her,
from the defendant, and after predicate had
been laid, this witness testified that the de-
fendant told him he had not planned ‘the
crime, that the reason he did it, he “reck-
oned the devil crossed his mind.”

John Clem, a witness for the state, testi-
fied that he went to the house of Mrs. Clem
within a few minutes after the alarm was
given, and he found “the torn clothes on
the floor of the bedroom where this trouble
occurred.” all

There was other testimony on the part of
the state, tending to show the commission
of the offense charged, and also tending to
connect the defendant with the crime,

The only testimony offered on behalf of
the defendant was his own evidence, and
we will here set it out. ie

“My name is William Clark, and I lived
with my mother Hester Clark on Charley
Anderson’s place, and I was sixteen years
old on the 24th day of September, 1938,
and I know where Mr. Gene Clem lives,
and also know Mrs. Lecie Clem. 'I went to
their home and got there between 8 and 9
o'clock, having left my sister’s about five
miles away and I was looking for money
and I went in the house through the front

door, and went on toa chest and. went: to

looking in there for money. I went. into
the living room and when I left there I
come on into the bathroom. There was no-
body there that I know of and I did not see
or hear anybody when I entered the home,
but after I got there Mrs. Lecie Clem came
in, and I saw her when she was coming and
she came through the back door, and I was

behind the door in the bathroom, I went in °

there when I heard her coming and I have
just heard what Mrs. Clem said, I did not
rape or ravish Mrs, Clem, : ee

“On
_‘witnes:
“Tw
ing, an
and sh
“in her
she w:
stead «
bathro
bathro.
me shi
her an
_bedroo
“QO.
this o
“Q.
‘hand?
with t!
“0,
see, th
_ chokec
And s!
' fell I
‘ powde
- did no
_ bacco
_ choke«
clothe:
on the
she fe
and I
and g
got he
“rested
low’s |
“was cl
'-ther’s.
the flo
her. |
“was d.
‘her e)
‘out oO}
peepec
clothe
the ti:
“Re
6Vo
few w
testify
choki:
she ft
Didn’t
Now,
you si
The w

“Re
ow)
Mrs.


nd

CLARK vy. STATE ‘Ala. 963

195 So. 260

6. Jury €>33(1)

"Evidence that: ‘some negroes had been
drawn for jury service but had been excused,
presumably at their own request, was not
sufficient to show systematic or arbitrary ex-
clusion of hegroes from jury box or jury
rolls, solely on ground of color or race.

7 Jury 238 -

' The qualification of jurors is to some
extent left to sound discretion of jury com-
mission, though commission cannot, in ex-
ercising discretion, exclude because of their
race negroes who possess the required qual-
ification, >: oe yay

P ———$_<}—___..
| Appeal from Circuit Court, Limestone
County; A. A. Griffith, Judge. :

»'William Clark, alias Harbert Clark, was
convicted of rape, and he appeals,

Affirmed..

“Ground 1 of the fnotion’ for new trial is
as follows: “Because there is no sufficient
evidence to support the verdict of the jury,
ard the verdict of the jury is contrary to
the weight of the evidence, and contrary to
both the law and the evidence.”

The following requested charges were
refused to defendant:

re | charge you that if there is a reason-
able supposition of the innocence of this de-
fendant, you must acquit him.”

“19. You should acquit the defendant
unless the evidence excludes every reason-
able supposition but that of guilt.”

“38. I charge you that, if you believe the
evidence in this case, you can not find the
defendant guilty.” |

GW. Chamlee, of Chattanooga, Tenn.,
for appellant.

Thos. S. Lawson, Atty. Gen., and Wm. H.
Loeb, Asst. Atty. Gen., for the State.

KNIGHT, Justice.

The appellant, William Clark, was in-
di¢ted by a Grand Jury of Limestone Coun-
ty, impaneled at the fall term of the cir-
cuit court of said county, for the offense of
rape. :

_ The judgment entry shows that on No-
vember 3, 1938, the defendant was ar-
raigned upon said indictment, he being then
personally present in open court and at-
tended by his attorneys, and upon said ar-
raignment pleaded “not guilty.” This plea
of “not guilty” was duly entered upon the
minutes of the court in said cause. The

case was then set for trial on November
10, 1938, and on that day, November 10,
1938, the defendant was put on trial, and
was convicted by the trial jury of rape, as
charged in the indictment, and his punish-
ment fixed by the jury at death,

The record proper shows due organiza-
tion of the court, indictment in due form of
law, and proper arraignment of the defend.
ant upon the indictment and his plea of not
guilty thereto; proper order setting the
case for trial‘on November 10, 1938, and a
proper order. for. a special venire to be com-
posed of 75 qualified jurors to try the case.
With reference to all these. matters the
law was fully complied with, as appears
from the judgment entry. No errors ‘ap-
pear upon the record proper.

Section 5407 of the Code of Alabama
provides: “Any person who is guilty of-the
crime of rape must, on conviction, be pun-
ished, at’ the discretion of the jury, by death
or imprisonment in the penitentiary for not
less than ten years.” .

[1] The crime being one that the jury
might, in its discretion, punish by death, it
becomes the duty of the court. to appoint
attorneys to defend the accused, he not
being able to employ counsel, This duty
the court observed in this case.

It appears from the record that the court
appointed by name attorneys of the highest
standing at the bar of Limestone County to
appear for and represent the defendant in
said case, and the record shows that the at-
torneys so appointed represented the de-
fendant throughout the trial.

[2]. It appears from the record that on
November 3, 1938, defendant’s attorneys
filed a motion, duly sworn to by the defend-
ant, that, the cause “be transferred to the
Juvenile Court to be there dealt with ac-
cording to law and for grounds of said mo-
tion says as follows: 1. The defendant is
charged with rape, and the defendant is
only 16 years of age, he having been born
on the 24th day of September, 1922.” On
motion, the court made and entered the fol-
lowing order. “The defendant files motion
in writing showing defendant to be a minor
over 16 and under 18 years of age, praying
for an order transferring the case to the
Juvenile Court; the court does not deem it
to be in the interest of justice and of the
public welfare to transfer the case to the
Juvenile Court, and the same being con-
sidered by the court, it is ordered and ad-
judged by the court that the said motion js

ieumpancibameste tee rel

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nseeeeeseeie a


rye wae

Alabama Man
Is Put to Death
For Ax Murder

ATMORE, Ala., April 28 (AP) — A
man who killed an acquaifitance
with an ax in a robbery was executed
in the state’s electric chair. -garly
today.

As the scheduled 12:01 A.M. exe-
cution of Willie Clisby sprain
inmates in the.cells above the execu-
tion chamber at Holman’ Prison
started banging on the walls and
floor. Mr. Clisby, 47, sat impass ively
in the bright-yellow wooden chair.

He made no last statement before
his face was covered with @ black
cloth. As the first jolt of the two-
minute electrical surge hit his body,
his fists clenched and his body went
rigid. His body appeared to*vrelax
after 20 seconds, and a small spiral
of smoke curled from the ‘elettrode
attached to his exposed left leg.

Mr. Clisby was convicted of kflling
Fletcher Handley, 58, with two chops
to the head in a break-in at Mr.
Handley’s home in Birmingham in
1979. Mr. Handley had worked with
Mr. Clisby at a cemetery. - 9%!

Mr. Clisby stole six old silver-cer-
| tificate bills, which were collegjers’
items with a face value of $80.

“I just want justice,” Mr, ,.Hand-
ley’s son, Fletcher Jr., told The; Bir-
mingham News. “My father ,,.was
hacked to death while he slept in his
bed. He.was executed for no reason
at all.’’

Mr. Clisby was also convicted of
stabbing his landlady to death earli-
er in 1979. He had been sentenced to
27 years in prison in that slaying.

In their final appeals, Mr, Clishy’s
lawyer’s argued that the. electric
chair was cruel punishmept:, (But
Judge A. L. Edmondson of the-Unit-
ed States Court of Appeals, far ithe
11th Circuit rejected. the request;for
a stay of the execution. yet

“It may be unsightly, .it. «might
bother other people,”’ the judge.said,
“but I don’t know that it’s cruel and
unusual to the person who's,being
executed.” eg

The Supreme Court denied astay
in a 6-to-3 ruling, with Justices.John
Paul Stevens, Ruth Bader Ginsburg
and Stephen G. Breyer in dissent.

; ‘ hove 9% ce

FR Ae i Ae ee ye ek en be en

Ne York lites 4-29-95 page §

oF Pye ye a

Ax Murderer Executed in Ala.
AP 28 Apr 95 2:05 EDT V0260
Copyright 1995 The Associated Press. All rights reserved.

Th

D

information contained in this news report may not be published,
adcast or otherwise distributed without the prior written authority
of the Associated Press.

e
roa

ATMORE, Ala. (AP) —- A man who killed a crippled man with an ax
during, a break-in was executed in the electric chair Friday morning.

Willie Clisby, 47, made no final statement.

His fists étendhen and his body went rigid as the first jolt of
electricity surged through his body, and a small spiral of smoke curled
from the electrode attached to his bare left leg. After about 20
seconds, his body relaxed and shades were pulled in the executio

Clisby's attorneys argued in their final appeals that the el
chair is illegally cruel. In rejecting a request for a stay, Ju
Edmondson of the llth U.S..Circuit Court of Appeals said Press
evidence that the cee satewent and burning of a corpse is cruel and
unusual punishment.

"It may be unsightly, it might bother other people, but I
that it’s cruel and unusual to the person who’s being ex ©
judge said.

The U.S: Supreme Court denied a stay in a 7-2 ruling, with justices
John Paul Stevens and Ruth Bader Ginsburg dissenting.

Inmates located a level above the execution and witness room could
be heard banging against the floors and walls of their cells from about
five minutes before the execution until Clisby was pronounced dead,

Clisby was convicted of killing Fletcher Handley, 58, with two chops
to the head during a 1979 break-in at his Birmingham home. He stole six
old silver- Corel sens bills, collectors’ items with a face value of
$803.08 !

Handley had to use crutches because of a foot injury suffered in a
car accident. |

Clisby also was convicted of ‘stabbing his landlady to death earlier
in 1979, and was sentenced toa ie TYSON. prison term.

3

be

Se

SECTION

SATURDAY
April 29, 1995

Convicted ax-murderer Clisby put to death.

By Jessica Saunders
ASSOCIATED PRESS WRITER

ATMORE — Willie Clisby
died in the electric chair at Hol-
man Prison early Friday, nearly 16
years after he was condemned for
killing a crippled co-worker dur-
ing a nighttime burglary.

Clisby, 47, was the first death-
row inmate executed in Alabama
since 1992.

Impassive as he sat in the
bright-yellow wooden chair,

dressed in prison whites, Clisby
listened to the acting prison war-
den read the execution order about
11:50 p.m. Thursday. Only his
eyes moved, flicking from side to
side occasionally and blinking fre-
quently.

When the warden finished read-
ing the order, Clisby briefly ac-

knowledged him, then was silent. .

He had no last words.

Inmates in the cells above the
execution chamber started bang-
ing sporadically on the walls and

= Condemned: Willie Clisby, 47, was the first
death-row inmate executed in Alabama since 1992

floor as 12:01 a.m. approached.
The shades were drawn in the wit-
ness room, then raised just before
midnight.

Clisby’s face was covered with
a black cloth. The first jolt of the
two-minute electrical surge hit his
body about 20 seconds after
12:01; his body went rigid and his

fists clenched. His muscles slack-
ened about 20 seconds later, and a
thin plume of smoke rose from the
electrode attached to his bare left
leg.

The witness room blinds then
were drawn again, and two doc-
tors entered the chamber about
12:06. They pronounced him dead

a minute later, and the witnesses -

were told the execution order had
been carried out.

Neither Clisby’s family nor his .
attorneys witnessed the execution. ,

Clisby was put to death for the

Nov. 7, 1979, killing of 58-year- _
old Fletcher Handley with two ,

blows to the head with an ax. Clis-
by then stole six silver-certificate
bills from Handley’s home. The
bills were collectors’ items with a
face value of $80.

Please turn to CLISBY, 2F

C66L *Qz Trady (uoszezzep) aTy °OeT® ‘HOeTA S@TITTM ‘AESITO a

jens

CLISBY

Jrom page 1F

Handley had suffered a foot in-
jury in a automobile accident in
1978 and relied on, crutches to
walk. His son, Fletcher Handley
Jr., told The Birmingham News in
a story published Thursday that he
was frustrated by the length of
time Clisby had been on death
row.

“I just want justice,’ the vic-

tim’s son said. ‘‘My father was
hacked to death while he slept in
his bed. He was executed for no
reason at all.’’

A deputy prosecutor at the time
of the 1981 trial, Jefferson County
District Attorney David Barber re-
called that Clisby grinned as he
confessed to the slaying on Nov.
14, 1979.

Handley and Clisby had worked
together at Elmwood Cemetery in
Birmingham.

Clisby also was sentenced. to a
27-year prison term on a second-
degree murder conviction for the
stabbing death of his landlady
earlier in 1979,

In his final round of appeals,
Clisby argued that death in the
electric chair was unconstitu-
tionally cruel. No court has ever
ruled that electrocution is prohib-
ited under the Eighth Amendment,
but a number of states now use le-
thal injection or allow a choice be-
tween it and another form of exe-

"Au ZuLND =

cution.

_ The U.S. Supreme Court denied
Clisby a stay of execution in a 6-3
tuling late Thursday, with Justices

John Paul Stevens, Ruth Bader

Ginsburg and Stephen G. Breyer
dissenting.

Gov. Fob James refused to
commute Clisby’s sentence Thurs-

day and declined to hold a clem-

ency hearing.

The Alabama Supreme Court,
in a 6-0 ruling Thursday after-
noon, rejected a defense request
for a stay of the execution. The
11th U.S. Circuit Court of Ap-
peals in Atlanta followed with a
similar rejection later.

State’s attorneys contended that
the cruelty claim had been reject-
ed earlier and that the latest plea
was not timely.

A state appeals court and a fed-
eral judge in Birmingham both re-
fused earlier in the week to halt
the execution.

Clisby failed to overturn his
conviction in two previous rounds
of appeals, in which lawyers
claimed he was mentally  in-
competent.

Holman Prison spokesman
Charlie Bodiford said Clisby’s
body will be taken to the Univer-
sity of South Alabama Medical
Center for an autopsy, and then re-
leased to his family.

A brother made arrangements
for it to be taken to a Bessemer fu-
neral home, Bodiford said.


2B Thursday, April 27, 1995

ALABAMA
ROUNDUP

u MONTGOMERY |
Killer’s kin ask to meet with James

Relatives of death-row inmate Willie Clisby'on Wednesday sought
a meeting with Gov. Fob James to beg for clemency, while his law-
yers pressed forward with last-minute appeals.

Clisby, convicted in the 1979 ax murder of a crippled man, is
scheduled to die at 12:01 a.m. Friday at Holman Prison in Atmore.

Attorneys filed an appeal and supporting brief with the 11th U.S.
Circuit Court of Appeals in Atlanta on Wednesday, claiming the
electric chair at Holman is cruel and unusual punishment in violation
of the Eighth Amendment.

A similar appeal, motion for stay of execution and brief were be-
ing filed with the Alabama Supreme Court Wednesday afternoon.
said an attorney with Maynard, Cooper & Gale in Birmingham.

A DISRTIS ERD
Moctgeueng Ate

424-995

Condemned
man’s family
seeks clemency

By JESSICA SAUNDERS
Associated Press Writer

MONTGOMERY — Relatives of
death-row inmate Willie Clisby on
Wednesday sought a meeting with
Gov. Fob James to beg for clemen-
cy, while his lawyers pressed for-
ward with last-minute appeals.

Clisby, convicted in the 1979 ax
murder of a crippled man, is sched-
uled to die at 12:01 a.m. Friday at
Holman Prison in Atmore.

Attorneys filed an appeal and
supporting brief with the 11th US.
Circuit Court of Appeals in Atlanta
Wednesday, claiming the electric
chair at Holman is cruel and unusu-
al punishment in violation of the
Eighth Amendment.

A similar appeal, motion for stay
of execution and brief were being
filed with the Alabama Supreme
Court Wednesday afternoon, said
Cary Tynes, an attorney with May-
nard, Cooper & Gale in Birmingham.
A staff attorney at the Supreme
Court said it received the appeal just
before 5 p.m., and no decision had
been made on a hearing.

The attorney general’s office
filed briefs with the 11th Circuit
Tuesday night, said Deputy Attor-
ney General Sandra Stewart, ask-
ing the court to deny the request
for a stay of execution and reject
the appeal on_ procedural
grounds.

case to its two-page ruling to

Murderer’s attorneys say

chair cruel and unusual

MONTGOMERY — Two
courts on Tuesday rejected
condemned inmate Willie
Clisby’s argument that the
electric chair is
unconstitutionally cruel and
unusual punishment.

The rulings by U.S. District
Judge Robert Propst in
Birmingham and the Alabama
Court of Criminal Appeals
brought Clisby, a convicted
ax-murderer, closer to the
scheduled execution at 12:01
a.m. Friday.

Propst denied the appeal and
a request for a stay of execution,
but allowed Clisby to proceed to
the 11th U.S. Circuit Court of
Appeals in Atlanta, attorney
Cary Tynes and deputy state
attorney general Sandra Stewart
said. The federal panel was
closed, but would receive the
appeal today.

The state appeals court
rejected Clisby’s appeal on
procedural grounds, saying it
“considers the petition to be
filed for no other reason than to
delay,” but added that even had
the court considered the legal
argument of the appeal it would
have rejected that too.

The court attached a
procedural history of Clisby’s

demonstrate that he had
adequate time to pursue appeals.

It was not immediately known
if Clisby’s attorneys had
appealed to the Alabama
Supreme Court before it closed
for the day, but that would be
the next stage in the state
appeals.

The appeals, proceeding
simultaneously in state and
federal court, argued that the
electric chair violates the Eighth
Amendment ban on cruel and
unusual punishment, and also
goes against “evolving standards
of decency.”

LE pEse- EvyawxRe &

4/20 (99 —

th die hint oNd i tsa stele.

LETTERS T

j
ak

at ‘

Grant Clemency
In Clisby’s Case

ear Gov. James:
D I write to express deep

concern that Willie Clisby
is scheduled to be executed on —
April 28. He was sentenced to
death in 1983 for the murder of a
58-year-old man, despite being di-
agnosed as being mentally ill.

I acknowledge the seriousness
of the crime for which Clisby was
sentenced, and I feel sympathy for
the relatives and friends of the
victim. But I feel obliged to pro-
test against all executions, in par-
ticular this one, on following
grounds:

Statistics show that in the Unit-
ed States the death penalty is dis-
proportionally imposed on the
poor, on minorities, on the men-
tally ill or retarded, on people
from deprived backgrounds and —
on those without adequate legal
counsel. Willie Clisby surely also
falls into this category because he
was diagnosed as being mentally
ill, borderline mentally retarded,
and has a long history of drug and
alcohol abuse.

Attorneys representing Clisby
have appealed his death sentence,

TO THE EDITOR

Stating that since the mitigating
factor of his mental health was not
addressed by the original trial
court, the sentence should be
Overturned.

Executing people, under any
circumstances, is beyond the dig-
nity of a modern state.

Detailed research in various
countries has provided no evi-
dence that the death penalty deters
crime more effectively than other
punishments. The number of vio-
lent crime cases in Texas rises |
yearly despite continuous use of
the death penalty. .

I strongly protest this execution
and most respectfully urge you,
Mr. Governor, as a holder of full
clemency authority, to grant clem-
ency to Willie Clisby by commut-
ing his death sentence.

Juha Tuomala
Helsinki, Finland

ADVERTISER
fe
Cpr (AT, (778

INMATE —
from page 1B d

I just want justice,”’ Fletcher Han-
dley Jr. told The Birmingham
News. ‘‘My father was hacked to
death while he Slept in his béd-“He
was executed for no reason at
all.’’ oi,

Death penalty opponents
planned a candlelight vigil for
Clisby at the Jefferson County
Courthouse. They fear the pace of
executions in Alabama will quick-
€n since 41 of the state’s 109 ¢on-
demned inmates have been -.on
death row at least a decade. |"

‘I think's we
will have a num-
ber of executions
this year — a
minimum of
five,"’. said
- George Jones of
Leeds, a member
of the Alabama
Committee, ,to
Clisby Abolish:the
Death Penalty, c

After Clisby, the next scheduled
execution ‘is May 12, when Var-
nell Weeks is set to die for | the
1981 murder of a veterinary, stu-
dent at Tuskegee University. .°

Alabama’s last execution “was
Nov. 20, 1992, when Cornelius
Singleton was put to death ''for

murdering a nun in Mobile. Prior-

to Singleton, , Alabama had''exe-
cuted nine condemned’ inmates
after the state restored its ‘death

penalty law in-1975, ae

Alabama .
executions

_ ASSOCIATED PRESS. !/
Condemned inmates. exe-
cuted in Alabama, and date of.
death, since the state restored.
its capital punishment law two
decades ago: se nee
™ John Louis Evans, Apri
22, 1983 ; ye ‘a
™ Arthur L. Jones, Match .
20, 1986 ess Ay &
m™ Wayne Eugene Ritter,
Aug. 28, 1987 vin
,_@ Michael | Lindsey, May,
, 1989 By sh Sb
-@ Horace Dunkins, July) 14;
989 F

ae gal

= Herbert Richardson,
Aug. 18,1989. ) aaIg
@ Arthur J. Julius, Novi0t7;
1989 fare
@ Wallace Norrell Thomas;
July 13, 1990 baw
@ Larry G. Heath, March °
20, 1992 nia
= Cornelius Singleton,
Nov..20, 1992 % ae
_ Source: Alabama Depatt!.
ment of Corrections “3

Wee

AZIDA

Diocese of Birmingham in Alabama

PEACE AND JUSTICE 8131 4TH AVENUE, SOUTH
P.O. BOX 12047 BIRMINGHAM 205-838-8306
BIRMINGHAM, ALABAMA 35202-2047 FAX 205-836-1910

March 28, 1995

Dear ACADP Supporter,

Attached is a request on behalf of Alabama death row inmate
Willie Clisby who has an execution date set for April 28. A fed-
eral judge determined that Mr. Clisby's sentence was "fundamentally
unfair", but the state has never given him a fair hearing on the
mitigating circumstances that could impact significantly on his
sentence. Mr. Clisby has been diagnosed with a mental illness, has
a history of substance abuse, and is borderline mentally retarded.

We are asking that you write to the Governor and the Attorney
General to stop the execution and to allow Mr. Clisby to be heard
on the mitigating issues. We have attached sample letters for your
convenience,

If you have any questions on this request, please contact
George Jones at (205) 699-2274.

For the ACADP Steering Committee, I am

Si ely yours,
>
aA
Chris Byrd

CB:jgs

Enclosures - 3

Hon. Jeff Sessions, Attorney General
Alabama State House

115 S Union St
Montgomery, Al. 36130

Dear Mr. Sessions:
Re: Willie Clisby

Among the duties ascribed the Attorney General’s Office are to see
the laws of the state are administered ,fairly, equitably and

justly. The pending execution of Willie Clisby we believe violates
these fundamental principles.

Federal Judge Robert Propst found Mr. Clisby’s sentence was
"fundamentally unfair" after hearing the Trial Court denied
defense request for psychiatric evaluation by the defense.

Dr. William Biedelman, Psychiatry Professor at University of
Alabama in Birmingham found at the Federal Court hearing the
substantial mitigating factors should have been presented to a
jury. The Judge found this denial "fundamentally unfair."

Hundreds of thousands of Alabamians voted for you in the belief you
were honest, and would enforce the laws with fundamental fairness.

We therefore respectfully ask you to grant a stay and allow a
sentencing trial to assure such fundamental fairness. '

Name Address

City State Zip


Hon. Fob James, Governor
101 State Capitol .
Montgomery, Al. 36130

Dear Gov. James:
Re: Willie Clisby

WE respectfully ask you to grant clemency to Willie Clisby whose
execution date has now been set. We- base this plea both on moral
and religious principles and the finding of Federal Judge Robert
Propst that MR. Clisby’s sentence was "fundamentally unfair."

This decision, the only one where actual evidence was submitted of
key mitigating factors resulted in Judge Propst’s decision the
sentencing was "fundamentally unfair." This was in part due to the
Trial Court denying a defense request for a psychiatrist.

Dr. William Biedelman, Professor of Psychiatry and Chief of Mental
Hygiene at the Veterans Administration Hospital, found Mr. Clisby
suffered from an anti social personality disorder complicated by
minimal intelligence and chronic substance abuse. The Federal

Court Agreed.

We therefore call upon you to:

1- Grant clemency to avoid compounding "fundamental unfairness." or

2- Authorize a sentencing trial where these substantial mitigating
circumstances may be offered. by

Name Address

City i * State Zip


ALABAMA COMMITTEE P. O. Box 948

Leeds, AL 35094

TO ABOLISH THE (205) 699-2274
DEATH PENALTY

March 27, 1995
URGENT URGENT

CLISBY EXECUTION DATE SET

The Alabama Supreme Court has set an April 28 execution date for
Willie Clisby. This gives us very little time. An execution date
of May 12 was set for Varnell Weeks. Attorneys for Mr. Weeks have

asked us to hold action on him as there is a real question if he is
competent to be executed.

There is a great deal of question as to the fairness of Mr.
Clisby’s sentence. « Federal Judge Robert Propst in Birmingham
determined the sentence was "fundamentally unfair" & granted
habeas corpus. Toa great extent this was never allowed to hear

very strong mitigating circumstances concerning Mr. Clisby’s
mental condition.

At the Federal Court hearing Habeas was granted after Dr. William
Biedelman, Professor of Psychiatry at UAB gave uncontroverted
testimony of Mr. Clisby’s mental illness (anti social personality

disorder) complicated by minimal intelligence and chronic substance
abuse.

Regretably the State was able to get this right to a fair hearing
voided on appeal. Willie has NEVER had a fair hearing on these very
strong mitigating circumstances. Execution is thus fundamentally
unfair, and the State pushing for it under these circumstances is
the opposite of admirable.

WHAT TO DO

1- Send in form letters to Governor and Attorney General

2~- Get them duplicated and get everyone possible to send them in.
NUMBERS DO MAKE A DIFFERENCE

3- Call local media and ask them in basic fairness to at least in
part print the NEWS RELEASE they’1l be receiving from us

4- Call in local talk shows asking Willie Clisby get fundamentally
fair treatment and be granted a new sentencing trial.

_ NOTE, BOTH WILLIE & VARNELL ARE AFRICAN AMERICAN. IF THEY ARE

EXECUTED IT WILL MEAN OF THE 12 EXECUTED IN ALABAMA 9 WERE AFRICAN
AMERICAN.


Chapters

ALABAMA»

632 Stephens Street

Montgomery, AL 36108 tle
MASSACHUSETTS

P.O. Box 7376 ty >{-
Worcester, MA 01605-0376

WISCONSIN (Main Office)

P.0, Box 8121 Rep

Oshkosh, WI 54903-8121

Dear friends and supporters,

Project Hope regrets to inform you that an April 28th
execution date has been set for Alabama Death Row inmate Willie
Clisby. We are asking that all who receive this letter, write a
letter to the honorable Governor Fob James requesting clemency for
Mr. Clisby.

In the space below we will list some reasons for clemency
that you may use in your letter. These reasons are a guideline,
however, we encourage you to also use any moral or religious
principals that you feel compelled to express.

1) We respectfully ask you to grant clemency to Willie Clisby
Whose execution date has now been set. We base this plea both on
moral and religious principals and the finding of Federal Judge
Robert Propst that Mr. Clisby's - sentence was "fundamentally
unfair."

2) This decision, the only one where actual evidence was submitted
of key mitigating factors resulted in Judge Propst's decision the
sentencing was "fundamentally unfair." This was in part due to the
Trial Court denying a defense request for a psychiatrist.

3) Dr. William Biedelman, Professor of Psychiatry and Chief of
Mental Hygiene at the Veterans Administration Hospital, found
Mr. Clisby suffered from an anti social personality disorder
complicated by minimal intelligence and chronic substance
abuse. The Federal Court agreed.

4) Ask governor James to grant clemency’ to avoid compounding
"fundamental unfairness." or; Authorize a sentencing trial where
these substantial mitigating circumstances may be offered.

Governors address:

HON. FOB JAMES, GOVERNOR Sincerely,
101 STATE CAPITOL Project Hope
MONTGOMERY,AL. 36130

An execution date has also been set for May 12th for Varnell Weeks.
Upon his attorneys advice, we are withholding action concerning this
because of a possible stay for mental evaluation.

—Why~
do we Kill people who kill people t shou that killing people is wrong ?


F
®
4
ng
i
A
a
fe

‘Siler inact une teeth mink ipremn nent mR eee ST a ARON

906 52 FEDERAL REPORTER, 3d SERIES

petition, and for courts to decline to adjudi-
cate claim in instant petition was not mani-
festly unjust. U.S.C.A. Const.Amend. 8.

Cathy S. Wright, Tony G. Miller, Cary D.
Tynes, Maynard, Cooper & Gale, P.C., Bir-
mingham, AL, for appellant.

Jeff Sessions, Atty. Gen., Beth Jackson
Hughes, Asst. Atty. Gen., Montgomery, AL,
for appellees.

Appeal from the United States District
Court for the Northern District of Alabama.

Before KRAVITCH, EDMONDSON and
COX, Circuit Judges.

BY THE COURT:

[1,2] This appeal is from the denial of
habeas corpus relief to an Alabama prisoner
facing execution tonight at midnight. This
petition for habeas relief is not his first. We
have expedited the appeal, had briefing from
the parties, and heard oral argument. The
briefing and argument addressed the merits
as well as petitioner’s motion for a stay of
execution and respondents’ motion to vacate
the district court’s certificate of probable
cause.}

[8] The district court’s certificate of
probable cause was limited to one issue, al-
though petitioner asserted several issues in
district court. We declined to broaden the
certificate.2 So, only one question is present-
ed in the appeal: whether petitioner (espe-
cially considering doctrines such as abuse of

1. About the Motion to Vacate the District Court’s
Certificate of Probable cause, we admit that we
have doubts about whether the district court
properly applied the correct legal standard when
it granted CPC. When a district court expressly
applies the wrong standard in granting CPC, the
circuit court may quash the CPC and decline to
decide the appeal. Kramer v. Kemna, 21 F.3d
305, 307 (8th Cir.1994). We leave open the

possibility of quashing district court CPCs in.

other circumstances that suggest that the CPC
was granted as a result of a legal error. But, we
are aware that our own rule, 11th Cir.R. 22-
3(a)(7), favors a disposition on the merits when a
CPC has been issued by the district court; and in
this case, we will accept and decide the appeal.
The Motion to Vacate CPC is DENIED.

2. We did not have the whole record before us at
the time.. We saw no need, under the circum-

the writ and procedural bar) is entitled to an
evidentiary hearing on his claim that electro-
cution as administered in Alabama violates
the Eighth Amendment to the United States
Constitution.

Although the district court granted a cer-
tificate of probable cause on this question,
that court answered the question “no” and
held no evidentiary hearing. The district
court’s opinion sets out more than one reason
for denying an evidentiary hearing. For the
purposes of this appeal, however, it is enough
for us to conclude, as we do conclude, that
the district court did not err in deciding as a
matter of law that petitioner had abused the
writ and that relief is barred. As was ex-
plained in the district court’s opinion, the
claim that electrocution as administered in
Alabama violates the Eighth Amendment
was available—factually and legally—when
petitioner filed his first habeas petition.? Pe-
titioner has shown no cause for failing to
assert and to litigate the claim in his first
petition; and for courts to decline to adjudi-
cate the claim in this second petition is not
manifestly unjust.

The denial of the Petition for Writ of Ha-
beas Corpus is AFFIRMED.

Because the rights of the parties in the
appeal have now been decided, the Motion
for Stay of Execution is DENIED.

O & KEY NUMBER SYSTEM

4nms

stances, for a complete record before acting on
petitioner’s Application for a Certificate of Prob-
able Cause to this court. See generally, In re
Woods, 249 F.2d 614 (9th Cir.1957) (entire rec-
ord not required).

3. Clisby’s first habeas petition was filed on May
24, 1985, and was amended on July 1, 1985.
Clisby raised—and then abandoned—the follow-
ing ground for relief in his first petition:

VI. Electrocution as administered in Ala-
bama is an unnecessarily cruel means of exe-
cution, constituting wanton torture in excess of
the means necessary to extinguish human life,
and is [not] justified as a means for achieving
any legitimate governmental end, and thus is
violative of the Eighth Amendment to the Con-
stitution. (In support of this claim, Petitioner
offers the newspaper clipping attached hereto
as Exhibit ‘“B”.) [Appendix N—Volume 3]


~ a4 ena ee

istitute has not pre-

nsuraace Company’s
cannot survive sum-
ilegations are insuffi-
erty Lobby, Inc., 477
Ct. 2505, 2514, 91
ie Insurance Compa-
enial of coverage 1s
its evaluation of the
at the time it denied
action for injunctive
nce Company did not
rre is no genuine issue
mmary judgment was
lis v. Midland Risk
611 (10th Cir.1994).

esearch Institute as-
rt erred in granting
ifter it filed a Fed.
The Research Insti-
court failed to consid-
‘a I ‘ch Institute’s
a jl mnt. The Re-
ought discovery of two
(1) three claim-file
before November 20,
i-file documents gener-
20, 1993.. The Magis-
.d'that these claim-file
une from discovery un-
doctrine and under the
ge, The: Research In-
the Magistrate’s Order
three pre-November 20
By failing to file an
sistrate’s Order on the
laim-file documents, the
as waived its right to

district court’s refusal to

of the rulings. Fed.

CLISBY v. STATE OF ALA.
Cite as 52 F.3d 905 (11th Cir. 1995)

[10, 11] Although the Supreme Court has
held that, under Fed.R.Civ.P. 56(f), summary
judgment [should] be refused where the non-
moving party has not had the opportunity to
discover information that is essential to his
opposition, this protection arises only if the
nonmoving party files an affidavit explaining

why he or she cannot present facts to oppose
the motion.

Dreiling v. Peugeot Motors of America, Inc.,
850 F.2d 1373, 1376 (10th Cir.1988) (internal
quotations and citations omitted). The party
must state with Specificity why extra time is
needed and how the additional time and ma-
terial will rebut the Summary judgment mo-
tion. Jensen v, Redevelopment Agency, 998
F.2d 1550, 1554 (10th Cir.1993). “[M]ere
assertion that discovery is incomplete or that
Specific facts necessary to oppose summary
judgment are unavailable” is insufficient to
invoke Rule 56(f). Pasternak v, Lear Petro-
leum Exploration, Inc. 790 F.2d 828, 833
(10th Cir.1986). The Research Institute only
submitted one affidavit, from one of its attor-
neys in support of its 56(f) motion. This
affidavit asserts the material is of “critical
importance” and the Research Institute “wil]
be seriously prejudiced if [it is] not able to
obtain and review the entire claims file of
[the Insurance Company].” However, the
affidavit contains only conclusory assertions
and does not show how the additional discov-
ery could have defeated summary judgment.
It was appropriate for the district court to
continue with summary judgment. The dis-
trict court did not abuse its discretion.

CONCLUSION

There are no Zenuine issues of materia]
fact in this appeal. Accordingly, we AF-
FIRM the district court’s grant of summary
judgment in favor of International Surplus
Lines Insurance Company on each of the

otion ‘for abuse of discre-
onst4® Dept. v. Rockwell
187, 1496 (10th Cir.1993).
rch fnstitute waived its
post-November 20 claim-
us ~ ale 56(f) motion
pria ius, the district
‘its discretion in refusing
~elief on those claim-files.

claims.

Ww
fe) E KEY NUMBER SYSTEM
T

Clishy CK Cf e/
T2E-IS AhLay

QR

905

Goin CLISBY, Jr., Petitioner—Appellant,
————
Vv.
STATE OF ALABAMA, Alabama Depart-
ment of Corrections, W.E. Johnson, Fred
Smith, Respondents—Appellees.

No. 95-6329.

United States Court of Appeals,
Eleventh Circuit.

April 27, 1995.

Petitioner facing execution sought writ
of habeas corpus. The United States Dis-
trict Court for the Northern Distriet of Ala-
bama, No. 85-PT-1251-S, Robert B. Propst,
J., denied relief, and petitioner appealed.
The Court of Appeals held that abuse of writ
doctrine barred petitioner’s claim that elec-
trocution as administered in Alabama violat-
ed Eighth Amendment,

Affirmed.

1. Habeas Corpus 818

When district court expressly applies
wrong standard in granting certificate of
probable cause (CPC) in habeas proceeding,
Court of Appeals may quash CPC and de-
cline to decide appeal. U.S.Ct. of App. 11th
Cir.Rule 22-3(a)(7), 28 U.S.C.A.

2. Habeas Corpus 818

Despite doubts as to whether district
court properly applied correct legal standard
when it granted certificate of probable cause
(CPC) to habeas petitioner facing execution,
Court of Appeals would accept and decide
appeal, particularly given its own rule favor-
ing disposition on merits when CPC has been
issued by district court, U.S.Ct. of App. 11th
Cir.Rule 22-3(a)(7), 28 U.S.C.A.

3. Habeas Corpus €=898(2)

Abuse of writ doctrine barred habeas
petitioner’s claim that electrocution as ad-
ministered in Alabama violated Eighth
Amendment; claim was factually and legally
available when petitioner filed prior habeas
petition, petitioner had shown no cause for
failing to assert and litigate claim in prior


CLISBY, Willie, black, elec. AL® (Jefferson) April 28, 1995

e

26 FEDERAL REPORTER, 3d SERIES

‘s & death sentence will actually be
ed, and the circumstances of this case
demonstrate that the jury's sentence
ith was unreliable, we reject Ingram's
and affirm the district court’s denial of
> corpus relief.
addition to his Eighth Amendment
Ingram also contends that: (1) the
judge’s improper remarks regarding a
of appeals violated the Eighth
dment; (2) the trial court’s burden-
ig charges violated his constitutional
(3) the penalty phase instructions
vited the jury from individually consid-
mitigating evidence; (4) the trial
s law clerk’s acceptance of employment
“he district attorney’s office during his
i prosecution denied him due process;
») the district court should have granted
identiary hearing on his claim that the
vutor’s failure to disclose a deal with
iate’s key witness denied him a fair
We have reviewed these claims and
ide that each lacks merit. Thus, we
' the district court's denial of the writ of
. corpus.

V. CONCLUSION

ital defendants possess no right under
«l law to a jury that imposes a death
ace believing that a sentence of death
vsult in the defendant's execution. Be-
no such right exists, Ingram’s claim

ce oral argument in this case, the Supreme
t decided Simmons v. South Carolina, —

—, 114 S.Ct. 2187, — LEd2q —~—
'4) (plurality), where it held that a state trial
\'s refusal to instruct the jury, during the
ulty phase of a capital trial, that under State
the defendant was ineligible for parole vio-
J the Due Process Clause of the Fourteenth

<ndment. In Simmons the defendant request-

4 jury instruction which informed the jury
under state law he was ineligible for parole,
: the prosecutor placed the defendant's future
vrousness at issuc. Simmons, 62 U.S.L.W.
10, —— U.S, at ——, 114 S.Ct. at ——. The
trial court refused the request, and upon
‘ing the writ of certiorari, a plurality of the
-t held that where a defendant's “future dan-
usness [is] at issue, he [is) entitled to inform
sury of his parole ineligibility,” Simmons, 62
LW. at 4514, — U.S. at —, 114 S.Ct. at

he Court's holding in Simmons does not af-
our conclusion. Even assuming that the

that he was entitled to a jury that believed
he would be executed if sentenced to death is
not cognizable under the United States Con-
stitution,

AFFIRMED,

4
|
‘a
a

Willie CLISBY, Petitioner-Appellant,

at ee,

Vv.

STATE OF ALABAMA, Fred Smith, Com-
missioner, Alabama Department of Cor-
rections, and W.E. Johnson, Warden,
Holman Unit, Respondents-Appellees. |

No. 93-6537.
United States Court of Appeals,
Eleventh Circuit. r
July 12, 1994,

Defendant was convicted in state court
of offense involving brutal axe murder and
was sentenced to death. After exhausting
State remedies, defendant petitioned for fed-
eral habeas corpus relief. The United States
District Court for the Northern District of

decision is retroactive, see Teague v. Lane, 489
U.S. 288, 311-12, 109 S.Ct. 1060, 1075-76, 103
L.Ed.2d 334 (1989) (new rule will be applied
retroactively only if it concerns bedrock proce-
dural elements which enhance accuracy of trial
court's decision), it does not help Ingram in this
case because he never requested the trial court to
instruct the jury regarding the significance of life
imprisonment. See United Suates v. Hines, 955
F.2d 1449, 1453 (11th Cir.1992) (where defen-
dant did not request instruction, trial court's
failure to instruct the jury on the clements of a
proffered defense did not constitute plain error).
Morcover, the circumstances of Simmons are
inapposite to the facts of this case because prior
to May 1, 1993, Georgia law did not provide for
life imprisonment without parole. See Ga.Code
Ann. § 17-10-16(b) (Michie Supp.1993). Thus, ”
had Ingram received a life sentence for the mur-
der of J.C. Sawyer, he could have been eligible
for parole in a minimum of thirty years. See
Ga.Code Ann. § 42-9-39(c) (Michie 1991): and
Supra, note 1, at 2,


ibe
la
been
ts O4
stric-
stock
335,
hay g

d the
Tans-
an by
ae
Mublic

adop-
Sion,
bylaw
Atnies.
Olders

oe no

rot
“wstork
ation:
Bless
itn oF
cate.”

bi ~
6 suche:
@ sucht

tid by-
ity of

hold ers

goin

who adopted it by unanimous vote.» This
contention overlooks the fact that such re-
striction is not only in contravention of
§ 62, Title 10, Code of 1940 (which re-
quires all restrictions to be endorsed on the
certificate), but also wanting in mutuality,
not supported by any other consideration
and unilateral, imposing no obligation on
the corporation or the stockholders to. pur-
chase the stock offered for sale by dissatis-
fied stockholders at any. price. . Sherrill v.
Alabama Appliance Co,, Inc., 240 Ala. 46,
197 So. 1; .Cosby-Hodges Milling Co. v,
Riley, 227 Ala. 347, 149. So. 612). °°":

Our judgment, therefore, is that the de-
cree of the circuit court is free, from. error
and is due to be affirmed. .

Affirmed,

L IVINGSTON, ‘SIMPSON aad, STAKE.
LY, JJ. concur. 5 rs

°o

atume

KEY NUMBER SYSTEM,

BO eal. TEES IB

Jan, 13, 1940,"

Tobionilolde 398 Stade a el ibe
The appeal of defendaiit; whose. pits

ishment was fixed at death as required by.

statute upon his conviction for first-degree
murder, which... was, ;committed . in,’ state,
penitentiary. while. serving, life, .sentence,
was governed, by,.automatic appeal. statute,
Code 1940, Tit. 14, S 319; Tit. 15, § 38200),

et seq: ti Of ba

2, Homicide €=282
Evidence’ whether penitentiary inmate

serving life sentence’ was guilty of first-

degree murder in stabbing cell ‘mate while.

at work in penitentiary cotton: mill’ was
for jury. Code 1940; Tite 14, $319, :

3, Crimtnal law ©=406(3), 517(1) :
Statements made by defendant shortly,

after homicide, relating to how. homicide ‘ ~
occurred, were admissible without, regard ©

* a «
EEE ete i lias SNe all

COBB, Pyillip, % lack, elses Pine (Mont gonery) sA11-919,

CCOBB.y.STATD. ae, 879
» Oite as 38 Baza 279° 8 IG Ala, )

to arheties statements contained. confes-

sions or were merely inculpatory state:

ments or admissions, . where statements
were voluntary.

4, Homicide on354. th

The Governor’s commutation of first-
degree murder death penalty to life: im-
prisonment substituted lesser. for, greater
punishment and judgment had same legal
effect after commutation as if jury had
fixed punishment at life imprisonment.
instead of death, and hence defendant who
was convicted of first-degree murder and
whose death, sentence was commuted to
life imprisonment by Governor was a “con-
vict sentenced to life imprisonment” with-
in statute imposing death penalty for first-
degree murder committed by “convict sen-
tenced to life imprisonment”. : ods 1940,
Tit, 14, § 319,

See Words ‘and Phrases, Derniiaent: .

' Edition, for other judicial constructions ue

and definitions of “Convict Sentenced to 7
Life Imprisonment”. ue rt

ar ee

5. Homicide 165(1)_

In homicide | prosecution against state
penitentiary inmate stabbing cell mate
while at work in penitentiary cotton mill,
evidence relating to existence of perverted
relationship between inmate and cell mate
and effort of cell mate to discontinue such
relationship, or statements to. effect | that
cell mate intended to do 50, was material
on question of motive, bay cs

6. Criminal law ©7723(1) ; .
« .In: homicide aireseention against; state
penitentiary inmate’ serving life sentence,
evidence; of former,:commutation of .in-

oh

mate’s death sentence’ to) life sentence was.
admissible, and ‘hence state solicitor’s argu-
ment attacking power of Governor to.com-.

mute death’ sentence. was not improper: as
refering. to prospective; death.,sentence, in
instant case, Code 1940; Tit..14,,§/319.))..

(oats hea Sorbo Fe ed ae Bey
_
? : , E JM ae pea 4

caAgpeat” donk Circuit ‘Courts Moutzorhicy
County?! Eugene: W. Carter, Judge.

>'Phillip Cobb ‘was convicted of | murder

in the first degree, and He: pepper las: Dann
Affirmed. es eae pepts heh GR
See also 248 Ala, 548, 28 So. 2d 713.


morning of the homicide; © that” shortly
thereafter appellant went to the part of the
mill where deceased’ 'was at work, a dis-°
tance of some sixty feet, caught deceased

sentenced to imprisonment for life,’ since
the commutation simply substitutes a les- _

ser for a greater punishment, and the judg-
ment had the same legal effect. after com-

Ht >a enantio

ee a ne 4 1
280° Al ae ” 88 kournmrn REPORTER, 24 SERIES” Pee
Ralph Ghent, of Montgomery, for appel- in substance, that ihe night before Portes hon
4g fant. . was killed, Porter tried’ to borrow money ' enotives
e. pee A he Carintchiel; Atty. Gen, and Thos, from him to “get some zizzie-will, that is, ‘So2d 48
4 Fy Parker, ‘Asst, Atty, Gen., for the State, some dope”; that he refused to let him Durish
b _ Appeal from Montgomery. Circuit Court, have the money; that Porter went out of she 'Stae
9 ‘the cell and returned in about five minutes , 5 eons
f - LIVINGSTON, Justice. Me - with a knife or dirk; that Porter told him | [ webte pe
ae [1] Appellant was tried and ‘convicted that when he went to sleep he was going I having €
oy in the Circuit Court of Montgomery County to kill him; faa he (ap pellant) sat up. all ' mute any
: for murder in the first degree, and his pun- night; that the next morning pn the way to alty, is.
ae -oiment fixed: at deallt, Phe Stense "Was the cotton mill he took the knife from a
. committed in Kilby prison, ‘the State peni- Porter; that after they Bot inside te mill, Eshes
ba tentiary, while appellant was serving a sen- Porter called him to, where he. {Porter) a beret
a tence to life imprisonment therein for a wes working, and attempted to strike him . tion of |
3 prior murder, His appeal is governed by with a piece of machinery; that he (appel- : the deat
1 the automatic appeal statute-—Title 15, lant) had the knife i in his hand and that «he : former i
. “section 382(1)" et ‘seq. Pocket Part Code. grabbed Porter’s wrists to prevent him 4 prospect:
4 from striking him (appellant), and that:in— j Casey ¥
* oSection..319, Title 14, Code, provides: the ensuing struggle Porter was s accidently former
Bo “Any convict sentenced to, imprisonment stabbed-in the: neck. ; gon v. §
ey for life, who commits murder in the first Aer, argumen
i degree, while’ such sentence remains in [2] Clear enfugh the case was one for ; ment he
4 force against him, shall, on fonviction, suf- the jury, and the affirmative charge was | that. whi
@ foe an Hy auld -.. properly refused, es o at Boyt
4 The evidence was 5 without ie cis that [3] Certain. Bunements alleged: to age k 575. and
; prior to. the commission of the. offense been made by appellant shortly after the b We hi
:. charged in the indictment, appellant’ was homicide and relative to how it occurred, under. th
’ convicted of murder in the first degree and were introduced ‘in evidence, over the ob-_ ‘ Title 1§
ae his punishment fixed at death, ‘and later jection of, appellant. Whether these state- i that no
& commuted to life imprisonment by the Gov- ments contained confessions or were mere- Afar
y ernor of Alabama, and that appellant was ly inculpatory statements or admissions are | ‘ae
t serving said life sentence when he killed immaterial here. ‘Their voluntary charac- ' All th
i one Jesse Porter, a fellow convict. ter was shown prior to their introduction. ° i NER, ¢
p The State’s evidence tended to show that See, Reid vy, State, 168 Ala. 118, 53 So. ; 4
appellant and deceased occupied the same 294; Herring v. State, 242 Ala. 85, 5 So.2d k
cell at Kilby prison; and’ that for: some 104) 105; Seale is State, #6 oa se F 4
time prior to the date of the homicide a #7 50.2d 43. : as i *
perverted telationship had existed between © [4] Under's section’ 319, Title 14, Code | :
: them and which the deceased, on the night of 1940, one convicted of murder j in-the first 3
preceding his death, had threatened to dis- degree and sentenced to be electrocuted, +. i
« continue; that appellant'and deceased went which sentence was commuted by the: Gove ‘
: to’ their work in the cotton millon the ernor to life imprisonment, is a “convict f
e

4. Appes

by the shoulder, turned him around and mutation as if the jury had fixed his pun= j The

| stabbed him in the neck with a knife’or ishment at life imprisonment instead. of ' he steicl

.. dirk, from which stab wound he died.) death. Johnson _,v, Sate 183 Ala, 79, 63 from 0

; . Appellant testified in his own behalf. H So. 163. i where ©
denied the existence; of any. improper re- {5]. The evidence ‘relative to the ex- timely —

lationship between him and deceased, and 4istence of a perverted relationship between | - geript a

ni denied that he had.told the investigating appellant and deceased, and the effort of being h

officers that sich did” exist, | He testified, deceased to discontinue it, or statements to.

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