Alabama, H, 1890-1997, Undated

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Large card
HARRIS, W4llkblack, hanged at Selma, Alabama, on March 28, 1902.

"Selma, Ala,, October 22, 1902 (Special) .- Two negro men found the body of Mattie Bell,
a negro girl aged about 9 years. The girl s brains had been beaten out with a small |
cedar sapling, found lying near. Around the body was every indication of a desperate
struggle, The girl left her home about 2 miles from the city, early this morning to
take to her father, who was working at the Selma Oil Company, his breakfast, and was

on her way home when she was murdered, She had just crossed the railroad bridge when
she was assaulted, After killing the girl the murderer dragged her body several
hundred yards into a thicket and covered it up with brush and undergrowth,

"when the body was found by two negro men it was still warm, The men hurried into the
city and notified the authorities, A posse of both white and negro men and with a
pack of bloodhounds went upon the trail to hunt the murderer, A smaller negro girl

was with the one murdered, but she ran away as soon as the man accosted her companion,
After reaching home she said that it was a well-known negro man named Whitman who had
assaulted Mattie Bll.

"Later this evening Sheriff Blackwell, with his dogs, captured William Harrison, a negro,
at the Selma Cotton Oil Company, within a few hundred yards of where the crime was
committed, who acknowledged that he had committed the crime, Harrison was safely
lodged in jail, but there is a great excitement among the negroes tonight, and if they
can find a leader they will probably make an attempt to get him out of the jail and
lynch him,"

CONSTITUTION, Atlanta, Georgia, October 23rd, 1902 (h:3-)

es ee ee ee an La ye
Pe ae ye el Ne eee ne ee a ee a Se See a ane es ae
’

HARRIZR Charles j y _

9 -” a 7 }

, falias Bouyer), »bl., clec. Ala. (“arbour) 8/23/1929 |
’ nt, eo

ae ‘SNETED OUT 0
‘BUPAULA SLAYER

Negro To Pay Penalty On
Aug. 23 For Murder
Of Mechanic ©

AGE-HERALD,

Birmingham, Ala.,

January 2h, 1929

°

(Page one.

»
EUFAULA, Ala. July 23—-P)—
Lester Bouyer, negro, and ex-convict,
Tyesday was. sentenced to be elec
trocuted at Kilby prison, state peni-
tentiary at Montgomery, the mofning

The jury verdict, returned after 10
minutes’ deliberation, recommended
the death penalty. Sentence was im-
posed. by Circuit Judge J. Ss. Wil-
liams.

Bouyer was returned promptly to
the state prison aboard @ special
train and under guard of more than
900 Alabama national guardsmen
called out by Gov. Graves to protect
the. prisoner against threatened mob
‘violence. He was not tried on an
indictment charging criminal assault
upon Miss Beatrice Clark, Hines’
companion the night of the slaying.

she courtroom was dotted with
more than two dozen guarsdmen,
bayonets fixed, and 25 state law en-
forcement officers, but at no time
during the trial was there any indica~
tion, of a disturbance among. the 200
odd spectators. The ‘court square
likewise .was manned. by guardsmen
and’ every ‘person allowed entrance
to the courtroom was searched for
weapons. | pean ee
" Only three. witnesses wére placed
on. the ‘stand by. the state. and the
defense offered no- testimony, al- |.
though a plea of ‘not guilty was en-
tered by defense counsel. . The prin-
cipal witness for the: state was Miss
Clark. She testified that Bouyer ac-
costed Hines near. the outskirts of
Bufaula and demanded money. Re-
fused, she said the negro threatened
to shoot Hines, and with her. com-
panion pleading for -his life, stepped
back several paces and. fired. Miss
Clark’s left arm was bandaged where
the negro was said to have wounded
her after shooting Hines. Other wit-
nesses were Dr. Ww. B. Britt, of Bu-
faula,.and Capt. Potter Smith, of the
State Law Enforcement: Department,
to. whom «- the negro confessed. the

rime. : a
Permitted a few words before sen-

tence was imposed, the negro re-
Continued on Page 2, First Column


i Soar Seren,

- dered’: to him -the apprecia
, State for his services.;.';:

DEATH SENTENCE  _
.. METED TO SLAYER

Continued From Page 1
Quésted the judge not to delay his
death. Bouyer served two terms in
the state penitentiary for burglary
and grand larceny and bhotos on file
at the prison led to his identification

as Hines’ slayer.

Graves Relieved Over ote

Orderly Handling Of.Trial =: f

«MONTGOMERY, Ala: July 23—His
expression and. demeanor. elearly
evidencing. his. relief from the. great
strain: under .-which--he..has labored
during three days and nights. of ap-
prehension .lest. serious trouble might

= develop in Barbour County incident

to the arraignment and trial at Eu-

g faula’ of Leslie Bouyer ‘alias: Charlie

Harris, cpnfessed . Slayer .of Jack
Hines and assailant of. -Hines’ girl
¢ompanion, Gov. Bikb Graves Tues-
day afternoon praised in the highest
térms the ‘work-of ‘all those. who'-had
apart in preserving order during the
¢cyucial periods «= i) aoe ee
ws“Alabama. is - proud. of -its: law. en-
forcement: achievement. in this .case,
and-of its national guard and its state
officers in- upholding the. dignity and
majesty of -the law,’ Gov. ‘Graves
said. “I. expect to issue a commen-
datory statement, signed. ‘by me. ‘per-
sonally, and addressed to Gen.. Wal-
ter. E.. Bare, who. commanded. the. na-
f¥6nal guard in this emergency, to-all

ficers under-<his command, and to
every non-commissioned “officer ‘and
private: soldier . who “ served ...under

em, expressing..my own. apprécia-
tion and that of.the staté of.Alabama,

‘their efficient: patriotic’ service.
“AT: will: also: address Hke" commen-
datory: statements ‘to: the: 22.state law
énforcement officers who“ cooperated.
““I' wish to extend my congratula-
tions to: the’citizens ‘of Barbour Coun.

| ty for their ‘self-control and their loy-
- alty''to the cause of law and order,”

‘During Tuesday afternoon. the. chief

- exeoutive’ forwarded a letter-to Cir-
/, cult Judge.J.'S. Williams, ‘at Eufaula,
> in which*he. congratulated-Judge -Wil-
» lNams*‘on his efficient handling of “the
‘' most‘ delicate and ‘difficult situation
'» that’has arisén' in the: ‘enforcement

. of our) laws-in many nani and ten-

on of the

sonnei Se eS et eS ee NE ee! eR eee ee ee cli

pe ere


HARRIS, Bill, black, hanged at Seale, Alaba ma on January 10, 1900,

"BILL HARRIS HANGED - SLAYER OF J. C. SMITH IS METED OUT JUSTICE, -
Seale, Jangary 10. - (Special.) - Bill Harris, the negro who killed
J. SC, Smith in this county last April was hung in Seale today in the
presence of several hundred spéctators, although the henging was in-
tended to be pnivate. The scaffold and gallaws was erected at a
back window of the jail, and some blankets were stretched sround the
pase of the scaffold to hide the body after the drop fell. “hen the
prisoner ascended the steps and while the rope was being adjusted, he
was in plain view of the crowd. The negro made no statement or
speech while on the scaffold, but before he ascendéd the steps he
told several persons that the killing was accidental; that Mr. Smith
was trying to take the gun from him, and that the fatal shot was
fired during the scuffle. No one believes his story. The drop fell
at 1:35. He was prnnounced dead in 15 minutes and cut down in 20
minutes and his body turned over to his relatives, Seale was full
of negroes, but all were quiet and orderly. The hanging hed no

visible effect on them." ADVERTISTER, Montgomery, AL 1-11-1900 (3-5),

Ay

AoG

black, hanged Selma,

Aw 222,

) ‘i

Pav geche

& 1h > Rhy Mts ies Sport a! i ViIUUUUU Ue
vinmeite Gereenville, Missoo From }
the Marers Ond phere way to the}
wi ONDE tm the other hand’
Rie Fiver Cows doun to a hune- | Monthly Pay Idea is Very
MRO Greate. which in turn ‘ \ bs i
me the Grea. forming the; Popular. Names of Those
ho Weber mew the alt . ‘
Miri tenn eha: bod the Who Are Pres.
hv ¢ MP org a at the
th neltigg snowa. of ent.

ra
he two,

divided
the

we tivaily
nety as

i

are

®

x

A
Ord

THE ROYAL GORGE The Jefferson County ‘Teachers’ In-

tke the Nighee: Cite oF tts sfze [stitute.is now tn progress at the Birm-
iA Se plac t--a hence 14,005 inabam High School building. ° The at-

ee Bt elevation nf 125 Teo | tendance is perhaps larger than at any:
many milies east of Tene; ‘

pais VaSteres faked et eh iver | previous institute beld in the county

Wea toc kine of whigh* hin also | 8nd the interest is very keen,

v developed enld $n good quanti-} County. superintendent of Education,
‘arthet down the eastern gtope, Professor I. W. McAdory, is presiding,
“OS STCYS Abe enon tred) and | and Mr. L. W. Letson is discharging
sawn Stung De Oe of them has tthe duties of secretary. Teachers are
Praptiately Rammed iuena Vista, ; present from all parte of the county

w dive betng truly maxgalficent.

sing Gh past Sabda and the ad- and the teachers and beads of depart-
ao Shh ® g which abousds in) min- ments of the Birmingham public
Aich af@ waters. of all) kinda, | schools are exhibiting a lively Interest

is Moun mttering the crowning tin the proceedings.

ey Sanne tier ss FIRST ADDRESSES.

STISiB GUS repay

wonderodf all Gowraio- the The exercises were ‘opened this
“rorwe o€ the Arkansas, The | @orping at 9 o'clock with an address

by Prof, Ernest F. Bush upon “Concen-
tration in Elementary School Course.”
Following this addreea, Miss Annie
Howlet spoke’ upon the “Personality
the-red Dats of the ‘gorge. To ae the Teacher ag it: Agects Diseip-
tare. ell tt on
pie Sa nha ey de ah Miss Kitts, musical instructor of the
us an2 awe-inspiring heights! Birmingham schools, together with &
rogtess Gown the canyon is dy} “ass from the Paul Hayne school, rea
¥ many intricare curves, and it'‘ bd musical selection.
as though the locomotive would |. Vrofessor W. H. Bowen spake upon
{taeit fo) atoms | agninst the | 7 anand in Alabama History
“wa raasanry, but each time ea} ™™ .
fee ts ehics and the train} IR MONTHLY PAY,
s Une premontory {n safety” Boon
ayeier fhde Rimeelf in the mae P
Santain © Peak upon :
tars him, aotil their Ppliatenca | STOLE arguments
i to touch the

canyon of this river ia seven
mu dength, seven miles’ of won-
awful scenery: To Ahe right
Arhkanaas iriver, above which

4

;

likes, both of whom. presented)
in favor of the
monothly system An effort was made
to secure a speaker who would advo-
cate the present system, but the effMrt
failed.

“Public School Curriculam: What It
Embraces and What It Should Em-
cercept bie, for the engineer has! brace,” hear Giscussed interestingly by
ep # gra the Royal Gorge is | Professor ge Nabors,

At thew polnt the canyon ts! Professor W. E. Dickson spoke upon
sha enough for road end river, the Legat Status of the Teacher,
re ig guep Que of the most re-! after which the delegates “ were en-
hte Vets ae engineering. Right | rolled: The following were In attend-

mes bad e H 2) ace:
SE tray ict the Sa =| DELEGATES PRESENT.
+ > JAG val = ‘ J WwW.

, im em bove to & height orl :
4 het. g euriew Of great! McDonald,
rgcon Yay beat thrown, from | Corkrell Bessemer,
eo tars depen> by Means ot fuss ville,
ithe a lone iron bridge

wky. |

tarker grow the shadows, >

‘A narrewer becomes the}

vesse, deeper and deeper)

che gloom, the river ceases ita}
qee notes of

¢ the train. te;

Hegsemer; Mise — Carrie
3. L. McKinney,
T. -G. Whaley; - Morris:
Mise Julia Royall and Miss

Le

Leison, Birmingham; TS Lop

Al

abama 3-28-1902.

Under

—-

“Calvin Battie ®
while at work at ti<
ing Mills today .*
freight car aod aim

‘\ Through... Proper’ End’
fora Dastardly :

Crime. .*; There were no with:
<oe - po the exact (ause
RRO Ge The cries of the
ae

rted other wor
“-agfter he fell benea
:* Mved only 2 few m:

t
me. ft fs believed tha’
BS? the track while In
“two cars, and that
Peneath the wheels

a

Special to the Birmingham News,
Selma, Ala, March 28—Wilt Hag
the negro who murdered ang criminals.
ly assaulted a "ttle negro gixt penta ry
Selma last October, was Ranged jm Jatt).
at 11:15 o'clock this morting. “Harel
dropped eight feet and broke Ais’
and died without a struggle >.
The execution was witnessed ty
few people, but « large crowd of: ee
groce were assembled og, the oetiide:
of the jatl and to these; Hartia
fessed his crime, and) seté: that:
hoped his ¢xecution would bee
ing to his race. He also suid bes
going atraight throegh to
STORY OF HIS CRINE:* 3
The crime for. which. Harte
hung wes ope of the modt brutal
has ever been in
Early

w you haven't
Be emm get it by pla
: * ._ News Want Colun

: A HANDSOM
fo 2Mr..and Mrs. Ja
were presented tb
tifei-oi) painting ©

>SSip
2

4

yi

ang daughter of
Roney, of Avon
skill. Mis

carry: hat F%

the city left ber home te és
his

father’s breshfast to him at

She carried
Harris: met. ‘pas just finished
Lontsville ¢ ac. @pd Mre. Hawkins

and followed ‘her about

Pappreciation for s
was presented her

ne
i] -

fe « Answers to yc

hss

with ber, Dut they paid
it as they thought that

1° SLORBED HER TO |

PahS. £9 2e asp the Yeoe NOTtOD, Birmingham, Miss K. Tarraat,
ee ee eee hur Past Lake; W..E. Dickson, Huffman:
f and runs. hot atrose. BME py, “actou. Owenton; Miss Ella Wall,
415 the contee Of The TIVER | bouiey: Miss Elva Batton;  Knaley; Harris
Le APM A OR -Mixs Julia Jt. Moore, Ensley; Ming] preliminary trial and
hive tng the eyal tothe tht | seaeeleine Smith. Birmingham; Mo J while he was being takes
Lee bopetiative Com plOehee® sian ghter, Jonesboro: On B Roper court room to the jail an w
2 tau) ts @oederfal eed wrand Pyo.sturg, Mra. Jolis Shelton, Avoue] sttempt was made to lynch
| Tpivk ob sett. walle Of Gale: Jonn H. Lee, Hirmingham; Ming! large crowd of negroes. A '
cg titimt perpendicularly for’ gene! Ragsdale; Moses Hughes; Mig {ago Harrie attempted to commit F
‘eo froth the Peete Med Beasle Bpradiing: Mise Ida Hanliag | tide by pounding up an empty: meade
Witney “peer Telween i Mins Luis Cartthere; W. H. Nabors, | ctpe bottle that-he had In Bis <gih,,
we The werOg Roe Area | weda, WS. Garner, Owanton; J. jatler discovered what he wae cota
ne tear &, Owhtoh® ep aet abs 11, Besecenes, Mina “Lena J fore he ~_ ewallow peters: &
inke ig way @icter Napg- > Warriat. BK. 1) Bares, Warrior: C.3B, | days after this onsuccess opens, .
ecpelple: 3b de get thiteewh? ¢ Teylor, S@andorky; WLR reo jauicide he confeased to the crime :
wrgh th aeicd che eriaceur i Adger; HR. Koux, Tewsaville: 8 Jv} which he wae hanged today and eoaal
Cleo Peg. ee et Ona” Davenport Mneley;- Mea. Cech oe contenecd to other similar exten’
wi he Widen Se fGen A im Wealer: J ML Davideon. Powderlyg C.} Wilcox county, fu this State, before Bp:
RE tes he. gules # feos! Wh Wy ieet Anger; Jesse Edwaeits;jcame to Belma, but stated thas .
(et Viele “Ring e€Obasts ont ys ayyeliie VD Breweek. Girnddsg-; girl Matthe Hell wae the only
im se Apni-py (pom wire J 5) Tinker, Alriningham, | that be had eve¢ killed, i
yy teeny fata Mise Mary NS. Hontey, Dicmtingham: BB.) Walter Detley, another pagro ¢
te ee we 8 Seek, Mosiey, Ming Leta 1 Whaley. with murder, was to have Deew
eee ae nae Atom: Lia meheo Mise Eileabeth Bo} poxtay wuh Harris, bot wes gregteg
oer wee Ws OLE boehee TUrmehgham, MaiooME ON. lew trial by the Supreme Cowt, ©
0 perge tae ot viewer 7 tiem irmjogheig, Miwa Baa | Harris is the firet negto thas
hitew wae ti Meee. Biginieshem,  Mipa cea liech hanged in Pellas towety le
lubes Ree Re OP Aemivahems Mime EMD.) eight year ao es ht, ae
OO gti tee ee Taper einen Bole Have Lon. ant > cecaieenensen, weap tiety
‘ tee -tatdas, OR, TOK Waleer, Kyla 2 FoF] MaAJION CLAGET bean, as
So BGs yp ap dae qua 7 PERE S wenn, Wine Levejuy.| Now Orleans, March 23
: ei tet “eset es ym Mitelin ee Bee Apple 1 Parausn (1 Caged, af the Bocond Un!
: # et ebay. Mie legal Herrin Kae) dufaiy dw. here taday  F
‘ ; 25 ye eh aA ile 4 egw. Bafaliete 6p Wide j Hew tivleana twy youths .
weil gers 4 an ths af PUL hig fe few take: Mea‘ Port Tihowes, Ky. to otmren ener: Y
; im 0 te 44, Me Th PRT) BERS ey, feomen Ao) Mejeos Ciegel Mas & eraditate a dh
| 4 ¥ HE WS Wr ase Vditie Warder Uwerisa AD Voter ead bad a crediiale re ed ye



istiota oF Uy ESER GA BAT SOR Rearty Cee | Log BoRte be EtOw NAR, ee Iaboe: 6) Rey
plete Ha Low pivoting: dare B bee theater ® bed | ec 'e elo o0 Le ae te Amdt barra
6 conbesetee WE bx't DA Amma cdtah Pepe ryeend | bats Cows, Mabe 4 oe pdenervene, ibe) 110

theraea ti Seat Le he Sg tee masts Mhe ee wes 8 fice br eee nol
fo Okey ale OTK At Ooty

Sent hae? Pear

to08 pre
oe, OF at Apes fey

. re 8) f. ’ -
One, two, the ef A bolt wipped the trep  jistion bed bedb Mibearved oe panose” hy
ppened and the not neqommauding Agate af the! that attaehen to the siiuation wae not therght of Ba id “s maT
nos notorions crimiual test Alsdame Ras overt | ta the presence of F , ‘ Tall him, My. Rernett, that! Some ao + teal,
© keown abot down fodr ands hell feet blow the} THE ACKMNING SPRCTACLE PRmeeWteD — (ren againa pi, an? Cae hops be will forgive
Puatform to expiaie the crime of # most croel | py the Sgare thy: qutvered at the rope’s ond, 9A ‘| wee fon (he Lard bestign that I baveleid 4
tripie murter | econd before It hat sewed aroct - brave in ® brutal 4 nian eine bare been fn fall Theres?S: é
< Pollowing clos the sharp suap that told bow 4 | wrse: stolid, though oonseloas of Impending ' tt Was BEAR ROOM | /

yoen’s peck had been broken, there reached the | doom; with a heart'that showed no flutter of ex: é Ay 4 ee i: “g F 3 ‘ whon the clergymen returned to the jal... pimbed up on the Gerrieks asd scoured omer -
gare of 16 solemn crowd within the jal jard $ | ctesient In the prosouce of death, and a brain : tity tame the crowd had become frightiul, and¥eoigue of vantace

gRcer from without, wrich that had «aficlent ‘control of al? the direfal thecdieputicd were kept of the alert to Keep peo- Weak TO Baim.
offices of criminal mémory totake bogolaance ouly ple trom gutting gader tbe ropes end. crowding

GRATED CPON EVERY SEXEIRILITY.
Te came from the crowd that bad deen ath: | of the combaay pladeand deal with Uvtalis, 9) about the jal door, © 2

ting for twa or three hours about the fall, 4 |” phe pendant Axnre-was brought ont fu etrong Tt had Gecen given out that nobody, having jt
Yhat nomd-r@H nearly KOO prople.) They Wail | re tot agal vate aombre back ground, add framed} y parses wontd be admitted to the jail nati 12 20
Peed watching ons of their pumber: who hadi 4, vy the rigid perpundtoulat Inewol the gallows, (orci k, Sxcont tho Rewspapér nen, Who were 10
elizobed to the top of the dertick of to new jail | the qitfrering atforts of Ife to rotein eupreonacy } De xiven'an opportunlty to suspect all quarters

feed tat thore cam wmanding a view of the gallows. | ale dmagicstion: pleiure the face Beasatd the at pretlenly noon, i es
As the trap wad sprung he waved Bis bat, and 41k osp and photagraphod op the minds of the At(hlO Bev. Dt, Purser, Rev, De. Tleughter
_, the cheer that weft up at thd signal showed how | 0.0) roup of apectatore the’ changes thet must and Hatbt Kien burg wentin, aid oiran ables
Sight was the eympathy for the confomed mur- | have pawed over that oouutopance ? : bir stoop of Hewspapermen standing near the court
paint ; ee : ; E | Rotinc caught a gtimajee uf the prioaer, Ho Wes

Gerer aod how creat was the eatistantion that he 3
(Baad, In dine process cf law, paid the poualty of eat pitling of the clothlag fin. whith be: was-10

Biactime. This was ; "| in that brief, expirfng Instant, reviewed the tan~
a4 > THE MOST MOTICRABEE FRATURE orama of a misap Ot Mle, with ite Goats of aire

‘ot (he Hawes baniog and it expromed the fed: | cious crime, and then with ‘a shudder passat
S4ng of relic! (iat wat fe § OY every band as weg guiitily ont of the stl cofvnlatvely moving body

as 0G te iN

SE RTS Beant

fag exorciagi and suleme lege (>. lakie quill.
bekrard the ahont of tae erowd (bat bat seem
died ju the vieimliy of tne jell aé@ition Gi we
of tbisa large Dumber sot pelieemen 004. otnens
had rollented, amd two or three of the workmen,

Jath. YARD,

quite hard at 1236, and Deputy Bowe at enee
6 oat wi he mbbef sont and ted) M sheng
ope W protect it rom molstare. oe
pont hung wiih ugly sem blanee tan eficy
of the, ogude mued mau, and sent & sbaddar
through the crowd : aeee
% |» XHE CoN DEMOS APVRARED ~ :
at TE49, The eafa had just cowed, and al) oa
beetles were put down.” Hawes walked with «
fing {road between Sherif smith aad Bepety
Sheriff Love, aud was la lowed by Bev Be, Pas:
pet, Rev. Mr Slaughter sod Mr F. 3. Daractt. ©
Hawes wer neatly Gressed {se Dinek cutaway
suit, 6 white anirc amd standing coiler sod @
necktie” His feet were encased te patent leather

‘ss THUR sour oF THE CRIMINAL

meyt Ala d60m, aud, Rp he adjusted «Drea wew,
ouptt, to Bie stalwart ‘loru,. it wah jwongered
whertier of bot or: :

ee eee, Sibiter

“JAIL ADDITION.

Be FRE INSTRU ONT OF DBA ft ff, end xinge bts conticion bas Lrequently Ce tea
12} waa the. noe’og wbin GD bert bows was banged.) promeed bimwcif as gradfied at the fact thal
Ajanta week many pestecday, 0d wb. t06 baudi-| worgh be hed rpoeired the beneti fer ty be |
work.ot Mr ii WHS was ol\oos the jarHrs JD | porte thet sa uracte.. to defendants be ed tay
fre Hawrch dion ') Pe’ E wad gant piled tos? | estistacsion of knowing, that there bet never},
of the sew Jail.qed withig a few feetof the wail, | becti ghy atemp: OO the! part of. Bs deferimg to
ta sficiggcs hed Dien weil maint. Severn! | resott.to legat wubtwrlage or anywtss bat phe
qitnes 05 adap the toe badd beer sorang and | strictet obertramce o' lewal etdics. pele °F,
erttpbiuig weckiehica) beed-smured 19 sticecas | What paws between the comiemnet man anc
by earefol esting and adjastinent, JTS OCA hie lending counsel wes of @rarve @ privileged
SULA ee Pere OO Sf dom mind ation aha will arver be known. ve
wns a %j inch erase one, nitohamdl of the Towers [yond ube fact that he thauked Colonel Taiwerny
| aardware company, Aba bad “deen put cp owl rot aiseSons in hie detail. end os Hewes Tee
| Wednesiay with Doety sgt bugs attanbet tonvest | 1 thy expersnod if on. the waljeet te
fs srreugth aud fake all of the asticity of Wr j ethers, tt wey be Aarmistd Wal he geste atter-
2} stow gutof it. During th hesyy satpatoret Of bance so his grativade,
f che precoding wight iL bed beeg carefaly Round. |. oo perosisny radk a BAweeTe
remateed With tts c!ieet ail he rost of ‘he corn

act wee lo excailegtooadttion when, atto'che ky

Sherif mich and. Depoty. Bheri® Love put te

preity s oo tuts (he Gent mooms fu’ s4atug thin | RAY Hewes spacieh request. He sald that be
Wanted Bis as tu Conformity tos dying reqoest
to temata endl the etd came, sod Mr. Barve tt

7 | abe proper iengit hadi tel earriully caleulated:
‘ nth ee eet hon judtien tee | MTG ark malty? with bie (to the enftoid, bgt a po eT ere”
segtried {4 Dv pult Ldve'tben ted tha bapgtaan’s Hawes was parieclarly aticted to nie yariot Fane det Fore par

Dippersatd be Dads deiten hele boequetet

1 peraniutne apd ‘ties of the valley. Be Jooked @
aunt with) Ge whe aurita nd witht aud the

[From « Photeatiph by J Horgan

pone wan rartiod Back tntbe lal 0 00%
} one cope bad been Oxrefntly Orepaned, Eri ry
loosd Bber that might Larpede friction wm rahhs

of @hich it was s part

Jar ect im the eneles (of tage’ | $0.60 tom Jadgehout too aba and just for Humen
Yt wes. jn fact the reflex | cosreption ee, t é

od eitn sand paper, and wen she. batiia was
coated with French cbalk. std tallow anti the.
noise aonld aluztet-cireet7/ 7+ On6 Weight.

sOouerl, and afver tbe cinee of the ‘aiter's speech ey ower & year aca in Coltibus, Mie i w6en
at the tele! furded tacak Ack i eRard Te. OFKE 1o.4 ted tothe aitare trusting: # ined, uy Bom
pet rare poled at ie Agcendans€ WAG) tous of the thet that the bidies of his alte nad
ce ay nid Ser the. bext oats he {girl were lying at the b ttom d¢ Lakeview,

pee reign we ry That ONGie ki the ticle was passed away by the walling
They remalned with the co demna) mag far aw) i ‘ ik?

a r | grape wondering at each Dresye what Hawos

Loet orthote afamiigg bia what oocao's dea thérighGchow be felvada.tha Nuk Fale car)
thes touid, edd'thes deraried fo Nerd acts] ake te a5

Uritle Pele at frst, aad then ad be fooled sp ot *
the gailows tis fage tock One sudten Band of
color, 4» the party got to the Soot'ef the semi”
tact the tala: began to fall again, Hawes thom,
ald: Wont gous SF ae z.

erat Cala eam So

furned to the aherii® sud made @ peje, Be «

of e tonsicn bat has been felt in qevetad aston} ‘The choat!y spectacle banunted many B xpeete

& the ran jvety | tor Jest pigh’ and she faces thal 6 vi “bo ‘seen exsd accompany hie te the eatfed, Dt oD. aS ecbentd sate haat atedex, the nawepaset T Want te epenn: to ple:
for more than a year and a tribate & the rar je t jest Bb « } ¢ i

j 5 empen i? "
Parser, who was ope of {be twa 6, etd to 8 — c ‘oh gordon oledapal Gabts ee) nes. ope sche! .
z plea at the dont oP 8) Gs ee Heese, who eat

portet afer bis viet at Hays was fe Letost) Tey minions sane clepend Robins Chey Wert Ad) weat dye" to the solemn “ae he appr erked |
xpitituaianodivea ther he had teen Orth pees! saigset pad then they wont Mi Ques tt: Uke jell | dhe onddentbed man, Paws put sot! bis Band -
pro daya aod that he rwed to he improving. yard and meured poiitone: Ia” froat Gt th) gard me a Ee Oe ery = ‘
a rae ra eae ay ha Nin Sil seaffahd, where a rough wankon ted Datel Gia |. + T 61m mod to lahie tote world, Wn Canal em
ive bite poe. tre ght be meguites aa 4 Pinto tte Fg Sot teat x at | is

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wan spect tratqiilly. but got in sop, He sia
notgy t bis bunk Onn. nite is, and whtled

eno power of the law, 1t was the ‘exnliation of }abont ih) gallows xoperan: thas ihe sabre
Jplo born, ef brutality, bet of tcalty | iba! rea tazough each frame'ns there Came
“pasleene ads phew conenet ,and the vio- sharp sdap of a human nikek was. due no :es- to} the ling away pactnig, hia ce}, sapuking and co
Seputign ot oe? bet ciples which lin wast deep /Soneurrens sseociations tau tu. the lomlecdre eectonalty cRchengink: word-or $wo wile. bis
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HAWES, Richard,Rey


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ARTA aS eh nan MAAR i i aN IER a

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An extremely rar

nicknamed, reviewed the facts in the irial testimony
that tended to favor his client, summarized the argu-
ments of his predecessors, and exhorted the jury to
weigh the effect public sentiment must have had in

prejudging the testimony of the eyewitnesses. AI] that.

was left then were the concluding remarks of Solicitor
Hawkins, and these were made on Friday morning.
He, too, reviewed the basic facts in the case that
tended to prove guilt, reviewed the premises of his co-
horis on the prosecution, and called for the death
penalty.}8

In Judge Greene’s charge to the jury, he defined
four possible verdicts that might be reached by that
group of twelve men. If guilty of manslaughter in the
first degree, ilawes would be sentenced to imprison-

138“Arguing an Alibi,” The Weekly Age-Herauld. May 1, 3889;
“Still in Argument,” “Guilty or Innocent,” “Hasves Guilty? all
in The Weekly Age-iferald, May &, 1889.

20

er, eaten gene steer =

‘Se aie

R. Dunk:
N. F. Thompson; E. T. Cox; G. W. Cross; and Hiram Ellis; standing, second row, J. M. Young; J. R. Mockett; W. W. MeGlathe:
J. B. Perkins; F. G. Shepard; J. A. Griffin; and 'T. H. Friel. Photograpis courtesy of Mrs. Clair Snider.

ment for not less than one nor ;aore than ten yeurs.
guilty of murder in the second degree, the accus:
would be confined to the penitentiary for not less th:
ten years, but possibly for a greater period. Tf guil
of murder in the first degree, Hawes would be se
tenced to life imprisonment or to the death penal
as the jury might decide. ‘The fourth possibility w
the verdict “not guilty.” And so the jury retired
deliberate the future of Kichasd Hiowes, and to ¢
lunech.'4

The twelve who composed Hawes’ Jury were am
rocosm of the respeetable middle and upper classes
Birmingham's citizenry. het professions reflect ¢
business of Birmingham - 9 growth, 2 marriage of Ia
and mineral wealth, a rail center. and a magnet j

ambitious men seeking their fortune. ATL the jure

itawes Guilty.” The Weekly Age Heraid, May 8, 188),

at emcees OIE AO BA Ne OTIS REN SANA BAT TERRE RIN PERE INC WND Hit A é

+ moan nate oe

«

In an amazing change in temperament, the Age-Herald
had just subjected the city’s avid readers to an April
Fool’s joke.

The principal figure at the trial, obviously enough,
was Richard Hawes. Every nuance of facial expres-
sion, every sidelong glance was reported, examined,
and dissected by the reporters present, and was de-
voured by the local populace unable to wedge them-
selves into the courtroom. The coverage of the Age-
Herald reveats an almost comic game of cat and mouse
that must have been played between the defendant and
the gentlemen of the press:

Once or twice during the afternoon {Flawes] half
shaded his face with his hand and handkerchief, and
then, when he caught the newspapermen looking at
him, as if conscious that whatever move he made
was observed and would be-recorded, and that this
might be construed as an exhibition of weakness, he
would put his cambric aside and look unconcernedly
and not unpleasantly at whoever he detected observ-
ing him.4

On his behalf, Hawes had enlisted the aid of four at-
torneys. E. T. Taliaferro was the leading counsel, a
native of Tennessee (b. 1849) who studied law under

«“The Jury Complete,” The Weekly Age-Herald, May 1, 1889.

An engraved portrait of E. T. Taliaferro, Hawes’ chief defense
counsel. From the photographs of the Department of Archives
and Manuscripts, Birmingham Public Library.

8
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An engraved portrait of James E. Hawkins, the County Solicitor
who tried the Hawes case in that spring of 1889. Bora in 1851
in Elyton, Hawkins was the son of Dr. Nathaniel Hawkins, an
early settler of Jefferson County. From the photographs of the
Department of Archives and Manuscripts, Birmingham Public
Library.

Governor John C. Brown of that state. After a distin-
guished career in the Tennessee state legislature (in-
cluding service as Speaker of the House), he retired
from politics in 1880 to devote all his time to the pro-
fession of law. In 1885 he arrived in Birmingham, hav-
ing married Eva Sloss, daughter of Col. J. W. Sloss,
six years previously. He rapidly gained a reputation
as a criminal lawyer. A commanding figure of over six
feet in height, Taliaferro was a striking, central per-
sonality in the trial. J. R. McIntosh, born in 1837, was
a native of Marengo County. He was educated in the
law at the University of Mississippi, served for some
time in the legislature of that state, and moved to Bir-
mingham in 1887. John J. Altman, a native of Sumter
County and thirty-seven years of age at the time of the
trial, practiced law in Livingston, Alabarna, until he
came to Birmingham in 1886. The youngest of the
four, Frank S. Barnett, was only twenty-three years of
age. Born in Eufala, he studied law at Vanderbilt and
the University of Alabama, and had spent considerab'>
time in Europe. The attorneys for the defense thus pre-
vided a formidable array of legal expertise.”

Their alter egos on the other side of the courtroom,
representing the interests of the state. were no less ¢x-

S“Todays’ Hlustrations,” The Weekly Age-Flerald, May 1, 189.

17

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tire weight of the case for the accused was based on
ithe memory lapses or outright deceit of those called to
the witness stand. The defense agreed that Dick
Hawes had been on the Highland dummy with his
daughter May, but on Saturday night, December 1,
not Monday night, December 3. His purpose in mak-
ing that trip was not murder, the defense insisted, but
a shopping trip. The father and daughter returned
home later the same evening around 8:30 p.m. At that
point, Hawes then returned to the city a second time,
on this trip accompanied by his son, Willie, who was
placed on a train bound for Atlanta. Once there, he
was to stay at the home of Dick’s brother, Jim. Hawes
spent several more hours in town, arriving back at his
own family’s home around one or two a.m. Sunday
morning. There he found the door open, his wife and
two daughters gone. According to the story constructed
by the defense, Saturday evening was the last time he
saw those members of his family alive. Sunday Hawes
wandered around the area of Lakeview, supposing all
the while that his wife had taken his daughters to visit
friends. He slept at the house on Sunday night, took
care of minor business arrangements on Monday, and
left for Columbus, Mississippi, on Tuesday morning.
This constituted the alibi of Richard Hawes.

Of all the witnesses introduced by the state, the
testimony of Fannie Bryant was probably the most
singularly damaging. Since Miss Bryant had been in-
dicted by the grand jury as an accomplice in the mur-
cer of Emma Hawes, her veracity was questionable.
But her version of the events of the night of December
3 corroborated the statements of many other witnesses
who testified that Dick Hawes was with May on that
Monday night. Thus, Hawes’ own version, which was
corroborated by no one other than a black hack driver,
was condemned by comparison. Some witnesses, un-
der close cross-examination, could not state with cer-
tainty that the accused was, without doubt, the man
they had seen either boarding or riding the dummy
line four months earlier. There were some conflicting
statements and detailed questioning as to whether the
rnan on the train wore a derby hat and overcoat
(Hawes maintained he had on neither), or whether he
carried a gold handled umbrella (Hawes argued he
had never owned one), and disagreements over the
length and shape of his mustache. The sworn state-
ments of ex-sheriff S. R. Truss, admitted over the ob-
jections of defense counsel, were also damaging. Talia-
ferro objected to Truss’ testimony concerning the dis-
position of the bodies of Emma and Irene Hawes.
Their bodies had been weighted down with a type of
heavy cord used extensively in railroading. Although
Judge Greene later reversed his own ruling permitting
the admissibility of the ‘weighted cord” statements,
the state had managed to connect the defendant to the
other two murders, a valuable psychological ploy."

——

10¢A Sick Juror.’ “The State’s Innings,” “Hawes’ State-
ment,” all in The Weekly Age-Herald, May 1, 1889.

Hawes’ defense was based almost solely on his own
testimony, since no one could be found who would
back up his alibi, except for the aforementioned hack
driver. Even the witness stand statements of his broth-
er Jim seemed to hinder rather than help his case. The
Hawes brothers had been together on the evening of
Monday, December 3, but Jim could not say with any
certainty that his brother had been with him at the
time other witnesses had stated that they had seen the
accused on the dummy line. Jim Hawes admitted that
their parting had left Dick enough time to pick up May
and proceed to Fast Lake. There were several besides
Richard Hawes’ brother who were called to speak of
the defendant’s good character and even disposition,
but these endorsements paled when compared to the
grisly accounts of the multiple murders.!!

The accused protested that Emma Hawes was a
drunkard with questionable moral habits. He argued
repeatedly that he believed himself to have been di-
vorced from his wife, and that she too recognized the
divorce and was fully cognizant of his impending mac-
riage to Mayes Story. At the time of the murders,
Hawes claimed he was initiating a plan to place his
children in a convent in Mobile. In so testifying, he
tacitly admitted an earlier lie made to other witnesses
soon after his arrest, wherein he claimed to have al-
ready sent his daughters to Mobile. In all other mat-
ters, however, the state could not force the accused {o
admit to other misstatements, or in any other way
shake his story.!*

Final arguments began on the afternoon of Monday,
April 29, and continued until the end of the week.
Ferguson Jed off for the state, followed by McIntosh
and Barnett for the defense, then Judge Denison for
the prosecution, Taliaferro for the defense, and Haw-
kins concluded for the state. If the newspaper ac-
counts are to be believed, the summations were emo-
tionally intense and eloquently argued. Solicitor Fer-
guson explained that Hawes’ motive was one of lust:
marriage to Miss Story was impossible unless his wite
and children were put out of the way. McIntosh and
Barnett countered by arguing points of law. The
former observed that the jurymen should be careful
not to allow extraneous matters, such as the unhappy
history of the Hawes’ marriage, the alleged divores,
and testimony os to the murders of emma aiid [rene
Hawes, to affect their judgment. Mr. Barncit Ciscussed

the problems inherent in trying a man on circumstan-

tial evidence, and urged the jury to consider th’s when
deliberating Hawes’ guilt “beyond a reasonable doubt ”
Judge Denison attacked the veracity of Hawes’ state-
ments when compared to the testimony of so many
other witnesses arrayed against him. Taliaferro took
the floor al 10:45 Thursday morning, end except for a
lunch break, spoke until 5:30 that afternoon. In an
impassioned speech, the “tall sycamore,” as he was
bid.

12"Hawes’ Statement.” The Weekly Age-Herald, May 1, 1882.

ee)

VPS a

5 ERA ISS MRE HT SEE EEO

perienced. Solicitor James E. Hawkins was born in
Elyton in 1851, the son of Dr. Nathaniel Hawkins, also
a native of Jefferson County.6 Mr. Hawkins was edu-
cated at the University of the South, Sewanee, Ten-
nessee, and was an apprentice student of law under
Judge Mudd of Birmingham. In 1874 he moved to
Shelby County, where in the practice of law and as
editor of the Shelby Sentinel; he “did some hard work
for white supremacy and in redeeming the state from
negro rule,” according to the Age-Herald. In 1883 he
was voted into the Alabama Legislature, followed in
1884 by his election as solicitor for Jefferson County.
His assistants in the prosecution of the Hawes case
were Judge George B. Denison and Charles W. Fer-
guson. Denison was a native of Ohio, born in 1846. He
settled into the practice of law in Memphis in 1873,
moving to Little Rock in 1876. In Arkansas he became
a judge of the circuit court. Upon moving to Birming-
ham in 1887, the title became an honorary one. Fer-
guson was the thirty-four-year-old solicitor for the
Tenth Judicial Circuit, and in that capacity assisted
at the trial. He was born in Dallas County, and had
lived in Birmingham since 1877.7

The judge of the Criminal Court of Jefferson Coun-
ty at the time of the Hawes trial was Samuel Earle
Greene. Educated at Washington and Lee University,
Greene afterwards taught in the schools of Elyton and
Birmingham. He studied in the law offices of Porter
and Martin, and was admitted to the bar in 1880. After
serving one term in the state legislature, he declined to
run again. Interestingly enough, in 1885 he formed a
law partnership with James E. Hawkins, the same
man who was to argue the state’s case in, Judge
Greene’s court. This partnership lasted until 1887,

when Greene was appointed judge.”

Proceedings began as scheduled on Monday, April
22. By Friday, May 3, the verdict of the jury had
been rendered. The first two days of the trial and a
portion of the third were taken with jury selection.
The process was a tedious one, and many prospective
jurors were released because they had _ previously
formed opinions in the case. The defense, in fact, ex-
hausted its quota of exemptions, and several jurors
afterwards admitted were objected to by defense
counsel. The last five days of the trial, from Monday
afternoon, April 29, until Friday morning, May 3,
were consumed with closing arguments. In the inter-
vening five days, testimony was given.

6His grandfather, Williamson Hawkins, had first settled in the
county in 1813, and owned the Jand on which the ‘ihonmzs
furnace stood.

7™Todays’ Hlustrations,’ The Weekly Age Herald, May 1, 1880.
SJudge Greene's parents were descended from old and distin
guished Birmingham area families. His father was the son of
George L. and Jane Y. Greene, of South Carolina, and wes one
of the earliest settlers of Jefferson County. His mother was the
daughter of Dr. Samuel L. and Harriet Hi. barle, also among
the early settlers.

9*Todays’ Illustrations,” The Weekly Age-Ierald, May 1, 1889.

18

ie LR pr N
ot inlet AB

The Jefferson County Courthouse where the Hawes case was
tried. Completed in 1889, the courthouse was the site of many
famous trials, but certainly few matched the drama of the Flawes
trial. Photograph from the collections of the Department of
Archives and Manuscripts, Birmingham Public Library.

The prosecution’s ‘ase was built entirely around civ-
cumstintial evidence, since no one but the-rnurderer
had apparently seen the killing of May Hawes. The
state showed, through the testimony of several eye-
witnesses, that May had been staying at a boarding
jAouse with Fannie Bryant on the night of December 3.
annie was a mulatto woman who had intermittently
served the Hawes family as maid and babysitter. Be-
tween the hours of seven and eight p.m., Richard
Hawes had arrived at Fannie’s boarding house, picked
up May, and boarded the Highland Avenue dummy
line that circled into the downtown area. A short time
afterwards, both father and daughter boarded the East
Lake dummy. This was another circular rail line that
served East Lake, at that time a resort suburb of Bir-
mingham. Upon reaching the pavilion at Hast Lake, a
scheduled stop on the line and very near the location
where May’s body was found, the two got off the train.
Less than an hour later, on a return run, Dick Hawes,
or someone who looked very much like him, boarded
the Fast Lake dummy and returned to Birmingham,
alone. On the next morning, ‘Puesday morning, Dick
Hawes left Birmingham for Columbus, Mississippi,
and marriage to Mayes ‘Story op Wednesday. His
motive? According to the prosecution, May probably
knew of the previous murder of her mother and
younger sister, all of whom had been regarded by the
accused as encumbrances to his fort coming marriage.

The defense claimed, on the other hed, and in its
eross-cxamining of witnesses attempted to prove, that
Richard Hawes had not been ai Fannie Bryant's
house on Monday night, December 3. Indeed, the en-

This rather amazing coincidence, made no less amazing
by the contents of the wedding announcement, was
followed by another. The train which had left Colum-
bus was due into Birmingham at 9:40. The local con-
stabulary barely had time to draw up a warrant and
hurry to the train station. Once there, three officers
tactfully escorted Hawes off the train, without subject-
ing the new bride to the trauma and mystery of the
unfolding story. There was no look, according to eye-
witness accounts, of either guilt or remorse. Hawes’
only statement was to ask which of his children he was
accused of murdering. The arrest of Hawes was at this
time mainly a precautionary measure, due to the com-
plete mystification of the authorities as to the exact
nature of his marital status and the whereabouts of the
rest of the Hawes family. The Age-Herald, however,
headlined the events of ‘the previous night in the
Thursday morning edition as: “THE MYSTERY
SOLVED: The Murdered Girl Has Been Fully Identi-
fied, and Her Father is Now in the County Jail
Charged With the Terrible Crime of Killing His
Child.”® The accused was taken to the new jail on the
corner of Twenty-first Street and Fourth Avenue,
North.

Despite the lurid headlines, Hawes did receive some
sympathetic press, but to much less an extent after
Friday morning. Testimony was given at the inquest,

oTbid.

May Hawes, the eldest daughter of Richard and Sma Hawes,
whose body was found floating on the waters of Hast ake, East
Lake, Alabama, December 4, 1888. From Goldsmith B. West,
The Hawes Horror and Bloody Riot at Birminghara: A Truthful
Story of What Happened (Birmingham, Alabama: The Caldwell
Printing Co., 1888).

and printed in the paper, that showed him to be a man
devoted to his children. One witness indicated that
they were the only reason he allowed Emma Hawes to
stay with him, as she was often intoxicated and had
been an unfaithful lover. Hawes himself maintained
that he had been secretly divorced from his wife in
Atlanta some years before, and had only lived with
her and the children since their arrival in Birmingham.
The Age-Herald described Hawes as a handsome bride-
groom when his train reached town Wednesday night,
and the paper reported that the accused steadfastly
maintained his innocence.!9

By Friday morning, December 7, however, most new's
releases concerning Richard Hawes were of the roost
damning nature. His guilt was assumed by the press,
and, in succession, by the populace at large. On that
morning, the Age-Herald devoted its entire front page
to the inquest and items of related interest. While the
paper complained that its reporters grew tired of run-
ning down sensational and groundless rumors, its head-
lines encouraged their spread. “DEEPER MYSTERY
Gathering Around the Death of May Hawes. 'l'he
Mother of the Girl is Still Missing And it is Believed
That She, Too, is Dead. A Search to be Mace For
Her Body. Hawes Has Never Secured a Divorce Frora
Her. How he Deceived a Trusting and Loving Young
Lady.”!! Nor was the sensational language used by the
paper guaranteed to cool the more hot-headed elements
of the populace. The lead paragraph of Friday morn-
ing’s story read:

The body of little May Hawes still lies at Lock-
wood and Miller’s undertaking rooms on Second
Avenue. The pale, cold lips will never open to speak
the name of the fiend in human form, who cut short
the young life. The little form is shrouded by a terri-
ble crime, the author of which need hope for no
mercy from outraged law and justice.”

Or an outraged citizenry?

In truth, and unfortunately for Hawes, there was
much circumstantial evidence in the case aligned
against him. Fanny Bryant (his supposed accomplice),
various businessmen about town, and the new Mrs.
Hawes had all been told varying stories by the accused
concerning the whereabouts of his family. To his re-
cent bride he had admitted the existence of only one
child by his previous marriage, a five-year-old son
named Willie (this unhappily turned out to bo the
truth, as Willie was alive and living with relatives in
Georgia). Hawes told some his first wife had been
deceased for two years; others that he had been di-
vorced the same length of time. A search of court
records in Atlanta revealed that the accused had indecd

"The Daily Age-Herald, December 6 and 7, 1888.
“Deepor Mystery,” The Daily Age-Herald, December 7, 1883
i2Tbid.


ahs 1 isnt alse alc SUNN eee antinm 4 ON ean tat

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aeeee sg

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HAWES, Richard Re, white, hanged Birmingham, Alabama, February 28, 1890.

THE HAWES RIOT:

Alli the News Unfit to Print*

JEFF NORTHRUP

It was the best of times, it was the worst of times,
it was the age of wisdom, it was the age of foolish-
ness, it was the epoch of belief, it was the epoch of
incredulity, it was the season of Light, it was the
season of Darkness, it was the spring of hope, it was
the winter of despair, we had everything before us,
we had nothing before us .

Charles Diciieink A Tale of Two Cities.

The spectacle of Birmingham at the fin de siecle was
indeed just that: a pageant that lacked none of the
primary ingredients of bygone melodramas. Unscrupu-
lous land speculators, romantic heroines, dapper lead-
ing men, virulent disease, a goodly supply of tawdry
subplots: they were all elements of what was in effect
a frontier town. While the above quotation from Dick-
ens is in no way meant to imply an identification of
the historical processes in the Birmingham of the 1880’s
and 1890's to that of France during the Reign of Ter-
ror, there was most certainly in Birmingham an abun-

-dance of lawlessness, turbulence, and indecision, and a

confusion over which direction the burgeoning city
should or would take. Regardless of the efficacy of
Frederick Jackson Turner’s thesis,’ that historian could
hardly have foufid a better laboratory than Birming-
harm to study the effects of the frontier on the social
fabric.

Despite the tendency of some writers to over-drama-
tize the last two decades of the nineteenth century, this
is hardly possible in recounting the events that oc-
curred in Jefferson County during that period of time.
O’Brien’s Opera House was in full swing, Asbury

hompson was the seventh mayor of Birmingham, a
new courthouse was being built on Twenty-first Street
and Third Avenue, North, telephone calls could be
made by dialing only two digits, and Thomas Seay was
Governor of Alabama. What had been a sleepy hamlet
of some 1,200 souls in 1872 had become a tumultuous
metropolitan hubbub of some 20,000 in the space of but
sixteen years. On weekends this number was swollen
two times over, as denizens of nearby suburbs made
their weekly trip to town. Many of these men were
coalminers and ironworkers who labored in the mines,
furnaces, and rolling mills in the vicinity. What amuse-
ments existed for these hard toiling men were simple
and predictable: saloons and bars of various descrip-

*This article is the first of two which will deal with the
Hawes murder case. The second, which will also be authored by
Jeff Northrup, will appear in a subsequent issue.

\Freclerick Jackson Turner, The Frontier in American History
(New York: H. Holt and Co., 1920).

16

tion did a land-office business, especially on Saturday
nights.”

Ordinarily, murders did not cause much commotion
among the good citizens of Birmingham. In fact, such
crimes were rather commonplace, the city being not
untypical of other frontier towns. There was great
wealth to be had if one were a shrewd businessman, and
passions often ran high. But in December of 1888,
murder was committed which shocked even the more
callous of the populace. As the mystery became more
intricate and the rumors more lurid, an unhappy amal-
gam of intemperate drinking, mob psychology, and a
healthy dose of self-righteous anger, all of which was
held together by the mortar of “yellow journalism,”
produced what has since become known as the Hawes
Riot.’

On Wednesday morning, December 5, 1888, citizens
of the Birmingham area were informed that the body
of a small child had been found floating on the surface
of a lake in the suburb of East Lake the previous day.
Despite the statements of two doctors that there were
no marks on the body to indicate foul play, the Age-
Herald headlined on page three of the morning edition:
“IS IT FIEND OR FATE? The Dead Body of an
Unknown Little Girl is Found Floating on the Waters
of East Lake—Suspicions of Foul Play.”* In what can
only be described as a maudlin display of emotion, the
paper then described the unclaimed body thusly:

After the good ladies had wiped the water away from
the cold little face and brushed the hair back from
the child’s forehead, it was seen that the little one
was unusually pretty. She had large blue eyes, light
wavy brown hair, was dressed in a neat brown or

‘For a listing of saloons in the Birmingham area, see Birming-
ham City Directory, 1888 (Birmingham, Alabama: R. L. Polk
and Co., 1888), pp. 590-91.

3Historians must rely, to a large extent, on the reports given in
local newspapers for an account of the riot and the incidents
leading up to it. The single monograph devoted to the subject is
Goldsmith B. West’s The Hawes Horror and Bloody Riot at
Birmingham: A Truthful Story of What Happened (Birmingham,
Alabama: The Caldwell Printing Co., 1888). Except for details
of the riot itself, the bulk of the information in West’s book is
lifted directly from the pages of the Age-Herald. James Sulzby’s
Birmingham Sketches, From 1871 Through 1921 (Birmingham,
Alabama: Birmingham Printing Co., 1945) is largely a faithful
word by word transcription of Goldsmith’s work. A. B. Garland’s
Biennial Report of the Adjutant-General of Alabama to Fhomas
Seay, Governor and Commander in Chief, 1889 and 1890 (Mont-
gomery, Alabama: Brown Printing Co., 1890) does not deal with
either the murder or the riot but instead is concerned in large
part with the demeanor of the militia and the townspeople in
the days following the riot.

“Ig It Fiend or Fate,” The Daily Age-Herald, December 5,
1888.


sn Ni teat, 2B rie ti ba

en ele sens al sseeaeb ed tebe Ds vase

A view of East Lake, East Lake, Alabama, taken a number of years after the body of May Hawes was found floating of its waters.
Fhotograph from the Collections of the Birmingham Public Library.

a

blue worsted skirt, underneath which was a warm,
plaid underskirt. She was 3 feet tall, 1144 inches in
height, and appeared to be about 12 years of age.
Her hair was neatly plaited and her general appear-
ance gave evidence of refined and cultured associa-
tion.’

Unfortunately, the paper’s suppositions as to the
girl’s genteel upbringing proved not only unfounded
but untrue. On the afternoon of Decetnber 5, the body
was finally identified as being the daughter of Richard
R. and Emma P. Hawes, residents of Birmingham. He
was a thirty-two-year-old railroad engineer in the em-
ploy of the Georgia Pacific Railway Co. His wife,
about twenty-seven years of age, was from Atlanta.
She suffered from alcoholism and a roving eye for
good-'ooking men, both of which had, over the years,
made for an unpleasant marital union.® This was hard-
ly what could be defined as a “refined and cultured
association.” But the whereabouts of both remained a
mystery. There were three children of which the de-
ceased, May, was the eldest. But neither parent had
reported her missing, and indeed, neither parent had
been seen the last two days. Why this was so remained,
for the moment, a mystery.

‘Lbid,
6West, The Hawes Horror, pp. 32-33.

The Jefferson County Coroner, Alfred S. Babbitt,
convened a six-man coroner’s jury and began holding
an inquest the day after the child’s body was found.
By the end of the first day’s testimony, on Wednesday
evening, one witness had been held in default of bond,
a mulatto woman named Fanny Bryant. According to
the Thursday morning Age-Herald, this was due to the
fact that Miss Bryant “had appeared to know more
than she cared to tell of the case.”? Further explana-
tions were not forthcoming.

The disappearance of the Hawes family was partially
solved late Wednesday evening. A telegram arrived at
the Age-Herald around 9 p.m. which read as follows:

Columbus, Miss., Dec. 5 — Mr. R. R. Hawes, one
of the most popular employees of the Georgia Pacijic
railway, and Miss Mayes Story, daughter of Mr. d.
D. Story, of this place, were married this evening at
3 6'clock at the residence of the bride’s father, the
Rev. J. W. Price officiating. They left at once fora
visit to his relatives in Augusta, Ga., and a bridal
tour through the East. There were no cards, and
only a jew friends were present.§

™The Mystery Solved.” The Daily Age-Herald, December 6,
1888.
SIbid.

j e
|
i |
1
j
j a
4
\
’
REOINGTON PHOTOS.
<
Richard R. Hawes, accused and convicted of the murder of his wife, Emma, and two of their three children, May and Irene. from
Goldsmith B. West, The Hawes Horror and Bloody Riot at Birmingham: A Truthful Story of What Happened (Birmingham, Ala-
bama: The Caldwell Printing Co., 1888).
| 17
ETO LEE TE NEE SEE I TE TERIA I NE IC SN I DME SPE PAE LSRTD MT Pmt ememmanes Fea as eh a eae

sentenced Richard Hawes, and the local populace had
attempted to carry out that sentence.

Although both Mayor Thompson and Sheriff Smith
were roundly criticized for their failure to act other
than in the rnanner they did, both survived politically.
Sheriff Smith was the recipient of several warrants for
his own arrest on charges of murder, but quickly posted
bail and was soon back on duty. Charges against him
were soon dropped. Martial law was never declared,
the military always remaining under the orders of the
civil authorities. The various militia detachments be-
gan to leave the city on Wednesday, December 12,
having seen no action.

As for Richard Hawes, the future was. bleak. The
coroner’s jury found him culpable of murder on De-
ceinber 12, along with two accomplices, Fanny Bryant
and Albert Patterson (a relative of Fanny’s). At his
trial, on July 12, 1889, Hawes was convicted of first
degree murder and sentenced to be hanged. After an
unsuccessful appeal to the Alabama Supreme Court
and a thwarted attempt at suicide in his cell, Richard
Hawes was hanged on February 28, 1890. Fanny
Bryant received a life sentence but was killed in a
fight soon after entering prison at Wetumpka. Albert
Patterson received a reduced sentence for turning
state’s witness.

The Jefferson Volunteers of the Alabama State Militia pictured before the as-yet-incomplete Jefferson County Courthouse on De-
cember & 1883, the day of the Hawes Riot. Jefferson County Sheriff Joseph S. Smith is shown standing to the rear of the line of
militiamen. Only a few of the Volunteers pictured above have been positively identified. Photograph from the Collections of the
Rirmingham Public Library.

24


These convictions and sentences were not, however,
the only results of the Hawes affair. The citizenry of
Birmingham perhaps gained a new respect for the con-
sequences of civil disorder, which they seemed not to
have possessed before. But the price of this educa-
tion — whatever its context — was dear. Among the
dead was M. B. Throckmorton, Birmingham postmas-
ter and militiaman, who had attempted to serve as a
peacemaker the night of the riot. Deputies guarding
the jail did not recognize him in the mob, and thinking
he was carrying dynamite, shot and killed him.?8

If the results for Birmingham’s citizenry were un-
certain, such was not the case for the Age-Herald.
The paper clearly profited from the incident. By its
own reckoning, more copies were sold during the week
beginning Friday, December 7, than had been sold be-
fore in the history of Alabama journalism. The follow-
ing table and commentary was provided by the paper
in its lead editorial on Saturday, December 15:

28“Guns Blazed, 11 Men Feared Dead — 51 Years Ago Today,”
Birmingham Post, December 8, 1939.

Friday, Detember Fre oe, _ 7,600
Saturday, December 8 _.......... 9,000
Sunday, December 9 19,524
Monday, December 10 12,856
Tuesday, December 11... 10,000
Wednesday, December 12 ........... 8,500
Thursday, December 13°). 2.2 Se... 7,650

That the interests of advertisers will be well sub-
served by making use of the columns of the daily
and weekly Age-Herald, is made patent by the fore-
going figures and statements.

The Sunday edition will be unusually large, and
the demand for advertising space will be heavy.
Advertisers should call at the office on Saturday, to
insure insertion.?9

In retrospect, one can only hope that the advertisers
got their money’s worth.

“°“How It Sold,” The Daily Age-Herald, December 15, 1888.



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a4 ny eh am Toh:
ILYmMiangne My ALA

sid ABMS

indiana

Crimson Sequel

. HOWLING December gale
churned East Lake into surging

fury. White-caps rolled across
the heaving surface. The usually smil-
ing Alabama skies were leaden with the
menace of the storm.

The rain lashed into the faces of two
frightened boys who were desperately
pulling their leaky rowboat toward shore.
They were less than 40 feet from the land-
ing when the youth in the back of the
boat uttered an exclamation of terror.

“Bud!” he cried, his voice quavering
above the noise of the wind. “What’s that
over there?”

The other boy ceased rowing. “I don’t
see anything,” he said.

The photo below shows East
Lake before improvements con-
verted it into a modern pleasure
resort. The body of May Hawes,
14, was found in the stretch of
water to the left. The discovery
marked the beginning of Bir-
mingham’s famous murder case.

“Look over there,” his companion in-
sisted. “It’s—”

But now Bud had seen the grisly thing
which was tossing and bobbing in the
waves. What he saw made him forget
the threatening expanse of thedake and
the peril of the storm.

“It’s a human body!” he said, and be-
gan working the oats harder than be-
fore. Soon they were close enough to
make out the details of the floating corpse.

A mass of wet, straw-colored hair
spread out from the battered head of a
young girl. The face and head were
above water, the rest of the body sub-
merged. The face was blue and swollen.
Ugly gashes marred the forehead.

The boys had seen enough. They
turned quickly from their ghastly dis-
covery and frantically pulled the boat
shoreward. They leaped out and raced
to summon help.

The small group of men answering

their cries that blustery day of Decem-
ber 4, 1888, could not foresee the deafen-
ing repercussions destined to follow.
Could they have dipped into the future
they would have seen the streets of their
city—Birmingham—crimson with blood.

East Lake today is a pleasure resort.
In summer it is a Mecca for milling hun-
dreds of pleasure seekers. But at that
time it was a desolate stretch of water,
lonely and isolated.

Two men entered the boat and rowed
hurriedly into the lake, their eyes glued
to the small body that continued to bob
and dip on the rough surface. They
lifted the broken little form into the boat,
their faces clouding in mingled anger and
horror. One of the men glanced at his
companion, voicing the thing the other
already knew:

“She’s been murdered !”

They had thought at first the child had
fallen into the lake and drowned. Now

noses


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sought vainly to bring murder charges
against him, Failing in this undertaking,
they attempted to gain enough support
to impeach him but all their efforts
ended in failure. No action was ever
taken against him, although his stand
against mob rule stripped him of his
political power.

Hawes, paled by confinement but
laughing in apparent confidence, was
placed on trial before Judge Samuel
Greene in criminal court on April 22.
He was represented by Col. E. T. Talia-
ferro, one of the state’s best known
criminal lawyers. R. E. Hawking was
assigned to‘handle the prosecution.

Defense counsel had sought vainly to
obtain a change of venue because of
intense feelings in the case, but Judge
Greene denied the motion.

Huge throngs, including hundreds of
women drawn to the trial by the de-
fendant’s many love affairs, thronged
the courtroom to overflowing. For 11
days the prosecution and defense waged
a desperate legal battle. But the state
had amassed an overwhelming amount
of evidence.

An East Lake trolley operator gave
damning testimony against the defen-
dant. He said that Hawes, accompanied
by a small girl, boarded his car on the
day fixed as the probable murder date
and rode to East Lake. He said that
Hawes later returned over the route
back to Lakeview Park but that he was
alone. Other witnesses testified they
had seen Fanny Bryant collecting scrap
iron about the Hawes residence. The
state presented evidence to show that
she acted as an accessory to the crime.

The defendant’s young bride did not
attend the trial. Stunned and bewildered
by the terrible accusations and the affairs
of his past life, she returned crushed
and disillusioned to her home in Mis-
siSsippi.

The jury deliberated less than an
hour. Hawes was convicted of first
degree murder and sentenced to die on
the gallows. The date of execution was
set for Friday, July 12. Fanny Bryant
was convicted and sentenced to life im-
prisonment. Patterson was absolved of
guilt.

Hawes’ sentence.was stayed by appeal
but in January, 1890, the Alabama
Supreme Court denied him a new trial.
A new execution date was set for
Friday, February 28. The handsome
killer prepared himself to die. He main-
tained, however, that the state was
sending an innocent man to the gal-

ws.

In the chill of early dawn the triple
slayer slowly mounted a scaffold erected
in the jail yard. He was dressed neatly.
Gone was the bravado he displayed
during the mob riot. His hands trem-
bled violently and his face was like paste.

As the rope tightened about his neck
he was asked if he wished to make a
statement.

“Yes, I wish to make one,” he said in
a voice that trembled. “I won’t die with
a lie on my lips. I’ve given a statement
to a minister of the gospel.”

His knees buckled but before he fell
the trap was sprung. No one ever knew
what he told the minister. The minister
never told.

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ASSOCIATION &NC.

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78 Accept No Sussvrtutes! Atways Insist on THE ApverTISeD Brann!


1 ET

splinters. In the red glare was a sca of
faces, all twisted and howling with hate.

His face chalk-like but grim, Smith
stood at a window and faced the throng.
He raised his hand for silence and for a
moment the rumbling of voices ceased.

“Men,” he shouted, “you are making a
terrible mistake. Go to your homes before
it is too late. I want peace more than
any man here, but I have my duty. I tell
you now that you are not going to have
this prisoner. If you advance another
yard you will be met by bullets. Men, I
am not bluffing!”

For a long moment he stood there. He
was less than five feet, seven inches in
height and was called “Little Joe” by
his friends. But tonight his small stature
was bolstered by courage. The mob
watched him for a silent moment, then
broke into a roar. There was a surge
forward.

The little sheriff shouted:

“L will count three and then fire!”

The mob surge on, crying: “Let’s get
him!”

Massacre!

HE sheriff started counting, slowly

and coolly.

He reached the count of three but the
mob pressed on, ignoring him.

“T’ll give you one more chance,” the
sheriff shouted. “This time I'll count to
five. After that, look out!”

Again his words were drowned in rears
of derision and howls of fury. Again the
unflinching sheriff began to count.

“One—two—three—four—”

The sheriff paused for a mere instant.
The mob had paid no heed to his count-
ing.

“Five!” said the sheriff and gave a
signal.

Gunfire burst from the jail windows
with a deafening roar. Shot after shot
poured into the thick of the mob.

Stunned and horrified, the dense-
packed throng reeled as if it had been
struck a single, mighty blow from a giant
hand. Disordered and in panic, the mob
fell back, leaving a welter of blood, death
and misery which Birmingham will never
forget.

The ground was covered with men,

Some writhed in their final agony, some
shrieked in excrutiating pain. But worst
of all were the men who lay utterly
still.

Ten men perished in the first burst of
rifle fire. Another died later of his
wounds. Eleven were badly wounded
and many others were injured. ,

Among the dead was Maurice B.
Throckmorton, Birmingham postmaster
and one of the city’s most prominent
citizens.

While the dead were being removed
to morgues and the wounded to hospitals,
the city became a seething furnace of

fury. Threats against Smith were voiced ,

openly. The state militia was called out
and guardsmen patrolled the turbulent
streets.

Smith was a marked man. His enemies
clamored for his impeachment. They
charged that innocent men who had
sought only to preserve order—Throck-
morton for instance—had been shot
down in cold blood. The sheriff expected
any minute to be cut down by an assassin.

Probably the coolest man in the jail
during the mad riot was Hawes. He
awoke when the mob started forming
and asked: :

“What's all that noise?”

“It’s a mob,” a guard told him.

“What do they want?”

“They have come to get you, Dick.”

The prisoner arose from a cot upon
which he had been sleeping. A grim
smile played about his mouth.

“All right,” he said quietly, “but I
hope they'll let me get ready.”

He then proceeded to dress neatly and
carefully, brushed his fashionable dark
suit and waited.

In the late afternoon of December 16,
another crimson chapter was written.
The bruised body of Irene Hawes was
found in the water at Lakeview Park,
weighted with railroad iron.

Immediately following the discovery,
a coroner’s jury returned a verdict
charging Hawes with the murder of his
wife and two children.

On January 22, 1889, the Jefferson
county grand jury convened and re-
turned murder indictments against all
three.

Meanwhile, enemies of Sheriff Smith

“Poor turnkey Adams!—he’s been tied down terribly since he got married!”

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after Hawes’ arrest broke into white-hot
flame. Small groups of men banded omi-
nously. Muffled curses and threats
against the prisoner were heard every-
where. The whispered threats soon be-
came outspoken. Mob violence now was
an open possibility as the fury of the
citizens increased with each passing
moment.

On the red letter day of December
9 they found themselves face to face
with a situation that drew all their at-
tention from the investigation.

Mob Surges On Jail

Lt WAS a mob with no single leader—
a mass of outraged humanity, that
surged foot by foot toward the prison.
Smith looked from a window on the
jail’s second floor and foresaw the in-
evitable.

Working hurriedly, he ordered re-
moval of Hawes and the two Negro
prisoners to the jail’s dungeon. He then
called all available deputies and police
into service, placing them at windows on
the second floor. He handed each man a

rifle and a heavy supply of ammunition.

“The law makes me responsible for
these prisoners. I'll die defending them,”
he told his men.

He walked across the floor to where
Chief Pickard stood.

“That mob out there is yelling for
Hawes’ life blood,” he said, “but they
won't take him from this jail!”

Mayor B. A. Thompson placed him-
self between the mob and the prison,
pleading for order.

“Go back home,” he told them. “Go
back to your families where you belong,
Let the law take its course. This man
has not been proved guilty. You know
that. I beseech you to give him the
chance that any human being deserves!”

His voice was drowned by hoots and
curses. Low whispered threats swelled
into a roar. The crowd grew.

Sheriff Smith glanced at the clock and
saw that it was almost midnight. He
looked again from the window and saw
that the mob was massed directly across
the street from the jail. Some were
carrying lanterns, others flaming pine

Nellie Begins 10 Year Stretch

Mrs. Nellie Tipton Muench, the St. Louis society woman who was convicted of
stealing a baby in order to defraud her lover, is shown above as U. S. marshals
led her away to begin a 10-year sentence at a Federal prison.

Aways Insist on THE ADVERTISED BRAND!

pe


HE HALF-MILE stretch of East

Lake was smooth as a mirror when

the sun broke through the mildly
chill haze of that early winter morning.
No sound disturbed the daybreak still-
ness save the gentle stroking of oars as
young John Keith slowly sculled the
small fishing boat over the calm waters
six miles east of downtown Birming-
ham, Ala.

On the stern thwart sat Ben Culba-
son, pole in hand, his eyes intent upon
his line, lazily slicing the surface of the
dark pool. Suddenly it sprang taut and
he felt a sharp tug on his cane rod.
The boy jerked the long pole to set the
hook, and felt it fasten firmly into a
resisting weight in the depths.

“Got him!” he shrieked joyfully.
Keith rested his oars and leaned for-
ward to watch his companion battle
the fish. From the stress on the rod he
was sure it was a big one. Then the
cane tip eased back straight again.
“Heck,” mourned young Ben. “He got
away.” He lifted the pole, and felt a
weight still on the line. “No he didn’t,
either,” he exulted. “But he ain't
fightin’. I wonder what. . oer

“The boys’ eyes bugged as Ben’s catch
rose to the surface. First they: saw a
mass of white cloth, plainly a dress,
then the stiff, sprawled arms and legs
of a human, and finally the head of a
girl, her dark hair swirling in the water
as the youthful fisherman continued to
haul her toward the boat.

“Golly!” John gulped. “She’s dead,
ain’t she?”

“I guess so,” the Culbason lad
nodded, pale and shaking with fright.
“What’ll we do?”

“Get her to shore,” his pal suggested.
“Get her ashore and get some help.
You yell while I row.”

The boy’s repeated, frantic shouts
attracted a passerby on his way to
town. He met them at the shore, and

; when he saw the gruesome object at
' the end of Ben’s fishline, he set off
rapidly to notify the authorities.

The two boys bravely stayed in their
“boat at the water’s edge until fiery,
two-fisted Sheriff “Little Joe” S.

Smith, Police Chief O. A. Pickard, four
deputy sheriffs and three city officers
galloped up on horses an hour later.
The date was December 4, 1888.
Birmingham was then ‘but a small
city of 25,000, just beginning to grow
into the steel center of 260,000 people
which it is today. East Lake, which
now is City Park, at that time was well
outside the city proper. A steamline
streetcar infrequently chugged out to
its terminus some 200 yards from the
landing to which John and Ben had

As they reached the train steps, the’
officer snapped handcuffs on th
pect. The b

on the platform, transfixed with fe
as she saw the steel bracelets on her

new groom's wrist. What.was wrong? a

(Photo specially posed by professional, models

@ sus-
lack-haired beauty stood |;

towed the girl’s body on a fishline.

Sheriff Smith dismounted hurriedly,
flung the reins to the ground, and
marched with strides that seemed in-
ordinately long for a. small man to
where the ‘two lads sat shivering. He
grasped the corpse and turned it over.
The other officers clustered behind him.

The dead girl was no more than 14
years old, the officials noted. Across
her forehead gaped a brutal slash, and
her features were swollen and dis-
colored. The sheriff pointed to dark

ry

¥
é
5

ire amet

T sought out
tendent, and
_to seek the
it stopped in

steamed into
ith and Par-
‘s was sitting
ng woman, a
ff observed.
the engineer.
2lopments in
aid abruptly.
ain and talk

was up he
and took the
long, honey,”

er to precede
d the proces-
>n. Handsome
smith in the
‘ps Little Joe
m the mus-

ig of this?”
atform below
ty transfixed
bracelets. on
h shoved the
wrish’s office.
1 great show
» know what
roared.

Y

now, Hand-
th. ‘You are

protested. “I

onily. “That
wait a long
re the bodies

ou're talking
You re mak-

cell without
took the girl,
fice for inter-

id been mar-
t believe this
can’t be true!
o even think

‘wes told the
her his wife
She said her
ig house in
reet from the
laid over in
is, Handsome
place. It was
vhom he de-
ver with one
nt and uncle

ersonality, his
stuous court-
e to wed him.
|. “T still love
mstrous joke
ue.” :
collapsed and
.. The officers
been cruelly
who _ slain
‘rs, and then
vedding plans

degree mur-
1 angrily as-

g against me,”
You told me
1at Emma was
ry again if my

sa a ans

“J was never more certain than I am

now that she is dead,” Little Joe snapped,
his voice like a whip.
sure that you murdered her. We'll be
positive when Conductor Brown sees you.”
Brown that night took one look at Hawes
d his finger at him accusingly.
that little girl to
East Lake Monday night. I told you T°

searching
ne Hawes
were. at. last ‘successful. In dragging the
Jake at Lakeview Par they found
bodies. Chains and railroa
weighted them down. Bo
brutally beaten on the head.
Little Joe tried to keep from the public

the fact that Hi

ominous pitch. However, Handso

seemed little perturbed by his danger.
Then Policeman ix came in with

i cas ighbor of

information in the
Hawes had told him that Fanny Bryant

had been seen leaving the engineer s home
about midnight the night of the murders.
Little Joe confronted th
with this statement. That broke her, and

she told the whole story. :

yards. The caretaker, however,
nothing of the slayings. .
Hawes feigned illness at work on Decem=
ber 3, got a substitute to take his train, an
told his superiors he was going to stop over
in Columbus to rest. Instead, he came on

to Birmingham.

Lynch Mob Gathers

There he slew her and anchored her
body in the lake. He went pack. to the
house, and late that night he and Fanny
ied the bodies of Emma ani
posited them also
in the water. Then Fanny, went home, an
Hawes returned to Columbus.

Albert Patterson was questio
eral days, but denied
the crimes, and Fanny Bryant verified
He was released.

were filed

First degree murder charges
Bryant woman, in addition

indignation against the engineer an is
accomplice mounted like clouds before a
Smith

On Sunday, December H
brought him word that crowds were
collecting and moving toward the jail.

Tt was up. to him to make a decision.

and Fanny Bryant were not wo the
ropes that would claim them, but there

was at stake the principle of free justice,

and Smith knew he would uph
the end.

“Even a_skunk’s got a ri
trial,” he told his deputies solemnly. :

. out using every means we
vent it, then. were

a |

we sit back and allow one lynching, with-

re admitting that any

Students or graduates of mine ha
fication in the

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302

Ist of April, 1884, owed fully or nearly as
much as they were worth, and that they
made no money during the succeeding
years; nor to their former failure in Octo-
ber, 1881; nor to the fact that at that time
they transferred mortgages to I’. Greenhut
to secure a debt said to be due him, which
he neither took possession of nor looked
after; nor that the books do not show
any settlement, or that such notes were
given on that day, except a pencil memo-
randum, when and by whom made not ap-
pearing: nor to the absence of proof as to
where and by whom the notes were kept
during F. Greenhut’s two years’ absence
in Europe. It is unnecessary to determine
whether such settlement was actually
made, and such notes then given for the
difference between the amount of the debt,
as ascertained by either of the modes of
calculation we have suggested as the most
favorable for defendants, and the amount
of the notes would not be material enough
of itself to invalidate the sale. We have
discussed the evidence as to the amount
due April 21, 1884, because it is an element
of the indebtedness in payment of which
the property was sold, and has a material
bearing upon the bona fides of the trans-
action, in that it was enlarged at the time
of the sale by the amount collected from
Flexner & Lichten, which we have shown
entered into the settlement of 1884. Leav-
ing out of consideration some discrepan-
cies in the testimony of F. Greenhut; his
loans of money to other persons in the
mean time; his indefinite and general ac-
count of the sources from which he ob-
tained the money, except his salary as
clerk: and hisobtaining money froin Long
& Greenhut at divers times, in small sums,
and also money with which to purchase
cotton,—we are still forced to declare that
the evidence, whether considered in parts
or in entirety, fails to clearly and satis-
factorily establish that the amount of the
bona fide debt was not materially less than
a fair and reasonable value of the property.

The sale was attended by unusual cir-
cumstances, which render the transaction
suspicious. It was made in haste and se-
erecy, and in the absence of F. Greenhut,
without consultation with him as to the
price of the property, the conveyances
were prepared at night, and excecuted next
morning before his arrival; the amount
of the debt and the value of the property
were fixed by A. Greenhut; and the sale
was made within three weeks after IF.
Greenhut’s return from Europe. These
facts, and others disclosed by the evidence,
reasonably justify the inierence that a
benefit was reserved to the debtor. We
haveno doubt that F. Greenhut loaned
the firm some money, and that they were
indebted to him, but in what amount we
are unable to satisfactorily ascertain. If
hetrusted to his brother to fix the amount
of the debt, and he wrongfully and fraudu-
lently swelled it by the inclusion of im-
proper items for the purpose of covering
the fair and reasonable value of the prop-
erty, and if he trusted to him to fix its
value, he must bear the consequence of his
own folly, and of a fraud the fruits of
which he accepted. Reversed and re-

manded.

SOUTIIERN REPORTER, VoL. 7.

(Ala.

Ilawes v. STATE.
Jan. 13, 1890.)

CHANGE oF Vuenur—JuryY— HomicipE—EVIDENCE
—INSTRUCTIONS.

1. Under Code Ala. § 4485, providing that an
application for change of venue “must be made as
early as practiceble before the trial, * * * and
the refusal of such application may, after final
judgment, be reviewed and revised on appeal, ”
where several successive applications for change
of venue are refused, the last refusal only can be
reviewed on appeal.

2, An application for change of venue was
supported by defendant’s affidavits showing such
excitement and prejudice against him, several

(Supreme Court of Alabama.

-months before the trial, as would have entitled

himto achange. The affidavits of seven reputable
witnesses testified that thisexcitement and preju-
dice continued to the time of the trial, and infect.
ed the proceedings, but this was rebutted by the
affidavits of 65 reputable witnesses, who had ap-
parently better opportunities for knowing, which
aftirmed that the prejudice did not then exist, and
that defendant could have a fair trial. Held,
that it was not error to overrule the application,
without examining witnesses ore tenus on the is-
sue presented.

3, Sickness of a juror’s wife, of such a nature
that, in the opinion of her physician, her life de-
pends on her husband’s presence, and the knowl-
edge of which ‘incapacitates the juror from per
forming his duties as such, warrants his dis-
charge, even after defendant’s arraignment; es-
pecially as Code Ala. § 4453, authorizes the court
to discharge a juror on account of his illness; or
for any other cause which in the opinion of the
court renders it necessary, and such discharge
does not operate as an acquittal of defendant.

4. The words, “to serve as grand jurors for
the weck,” in a venire for grand jurors, are in-
consistent with the writ required to be issued;
and, where it appears that the grand jurors were
drawn and summoned for the terin, such words
are properly treated as surplusage, and do not
vitiate an indictinent found by such grand jury
after the expiration of the week.

5. The facts that jurors are drawn and sum-
moned in compliance with a statute passed after
the commission of the offense, and that the clerk
had not written up the minutes, and hence there
was no record of the order for the venire, are no
ground for quashing the venire.

6. It is proper to refuse to ask a juror on his
voir dire whether or not he has previously had a
fixed opinion as to defendant’s guilt or innocence,

7. On a trial for murder of one of defendant’s
daughters, where there is evidence to support the
theory of the prosecution that her killing, and the
killing of defendant’s wife and another daughter,
were each a part of a scheme to accomplish « cer-
tain purpose, all evidence tending to connect de-
fendant with the murder of his wife and other
daughter is admissible.

8. Evidence of a witness on cross-examina-
tion, as to defendant’s character, that he “had
heard for the last few years. that defendant had
frequent difficulties with and struck his wife, ” is
admissible.

9. A witness may be permitted to refresh his
memory by referring to a published article writ-
ten by him from notes of a conversation held by
him with defendant, and which he testifies con-
tains the substance of what defendant said, the
notes having been destroyed.

10, Communications to a confidential clerk of
a firm of attorneys, made by one who knows that
such clerk is not an attorney, and who. docs not
know his relations to the firmn, and without show-
ing any desire to have the clerk carry the com-
munications to the attorneys, are not privileged.

11. Code Ala. § 2780, which provides that
“registers of marriages * * * kept in pursu-
ance of law * * * maybe certified by the cus-
todian thereof, and, when so certified, are pre-
sumptive evidence of the facts thercin stated, as
well as of the law or rule in pursuance of which

HAWES, Richard Re, white, 33, hanged Birmingham, Alabama, on 2-28-1890,

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gang’s got a right to try anybody accused
of a crime, and string him up without. a
hearing. Get your guns ready!”
Darkness fell, and the mob increased
both in size and in its determination to
mete out hempen punishment to Hawes
and the Bryant woman. Reinforcements

| of city policemen: joined the sheriff and

his men in the jail.

In his cell, Dick Hawes heard of the
lynching threats, but he was apparently
unconcerned about his danger. He combed
his hair frequently with great vanity, and
sat down to read a book.

At a few minutes after 9 o'clock Deputy
C. L. Fletcher, on guard at the outer door,
burst into the inner office, bolting the
heavy, oak-paneled portal behind him.
There was no need for him to explain
his action. The rising clamor of the mob
was clearly audible; it was moving down
Fourth Street toward the jail, and Sheriff
Smith knew that now jit was beyond

control.

“There must be a thousand of them,”
the deputy said. “They’re armed, too.”

“So are we,” spoke Little Joe resolutely.
“We're doubly armed, because we're up-
holding the law. Everyone pick his spot
at a window covering Fourth Street. For
the love of God dont shoot until I give
the command. Then keep on firing until I
tell you to stop.”

“You really mean you're going to open
up on your own townspeople?” Fletcher
asked, ‘still doubting -that his superior
would shed the blood of others to save
Hawes and Fanny Bryant. .

“Lynching’s murder—just like Hawes
and the Bryant woman committed,” said
the sheriff. “There ain’t going to be any
of that while I wear this badge.”

The mob, moving rapidly, came nearer
the jail. Joe watched them ‘as they ap-
proached within 100 yards, then 50, then
Se

“Commence firing!” he barked.

An ear-splitting fusillade ripped out.
Screams filled the night as half a dozen
men in the van of the would-be lynchers
toppled to the ground. Still the main body
of the mob pushed on. Sheriff Smith and
his men kept their guns smoking. More
and more men fell in the street outside.

Liftle Joe glanced into the cell occupied
by Dick Hawes. He was no longer indif-
ferent to his fate, now that the angry
townsmen were storming the jail. White-
faced and quaking, he was upon his knees
by the iron bunk; he seemed to be
praying. :

Suddenly the crowd faltered, then began
to retreat. -

“Hold your fire!” cried the sheriff.

Heartsick from the terrible dut he had
been forced to perform, he peere through
the powder smoke into Fourth Street.
Many bodies lay motionless there.

In all there were 11 dead and 27 seriously
wounded. It was the bloodiest tragedy of
its nature ever visited upon the state of
Alabama.

On April 22, 1889, Handsome Dick Hawes
came to trial before Judge Samuel Green.
Defending Hawes were E. T. Taliaferro
and Frank W. Barnett. The prosecuting
attorney was R. E. Hawkins. .

Hawes was convicted, and the jury de-
creed that he should hang on July 12,
1889, Through appeals, however, the exe-
cution was postponed until February 28,
1890. At 11:15 on that morning he care-
fully combed his hair, and walked out to
the scaffold. A few minutes later, he
dropped through the trap.
| Fanny Bryant was also tried and con-
' victed on the first degree murder charge,
but her punishment was fixed at life im-
prisonment in the state prison at We-
tumpka. She was killed a short time later
in a fight with a guard.

UNDERCOVER!

(Continued from page 23)

Rafael,” the undercover man, grinned.
“You won’t lose by this.”

“Okay, amigo,” said Lopez. “Adios.” He
paused. “But be careful. Those wops are
armed.”

Hank went to the New Yorkers’ hotel
and found them both in their room, primed
with questions. They quizzed him minutely
about his past. Finally Big Tom Santoro
whipped out a wicked looking Luger,
aimed it at the American’s heart, held the
gun steady for a moment, and then laid it
on the arm of his chair, its muzzle point-
ing at the tall undercover man.

“Just a reminder,” he said softly, “of
what will happen if you should decide to
doublecross us.”

Hank’s steel-gray eyes glinted. Almost
imperceptibly his right fingers ‘slid under

_ his leather jacket, and his hand emerged

in a lightning-fast motion with a .38 re-
volver. He held the sight on Santoro’s
chest. “Just a reminder,” he warned, “that
I don’t expect any funny business, either.”

The dope dealer paled, then laughed.
“Okay, pal. Put down the gat.” He hol-
—" his own gun, and Hank followed
suit.

“You're. hired,” said Petrelli. “We've got
to have an interpreter.”

“Pl go with you,” offered Lester. “But
I'd like to know what’s in it for me.”

Monopoly Planned

Santoro laughed again. “Is that what’s
worrying you? Listen, pal, this deal will
make you rich. Stick with us.”

“Tell him what we got in mind,” sug-
gested Petrelli.

“Okay,” said Santoro. “I'll tell you this
much. Our mob in New York has got
dough, plenty of dough, to invest in this
dope racket. The boss will let us spend 200
grand. Addicts in the States are crying
for snow. They can’t get it from overseas.
We're going to buy up all the dope in
Mexico, and then get the peons down here
to grow opium poppies. We'll finance the
crops, if necessary. That way we'll have a
monopoly on all the dope available to the
erg and we can charge our own prices.

et it?”

-Hank whistled. “Sounds great,” he said.

“Who is your boss?”

“That,” said Santoro, “comes strictly
under the heading of our business.”

The train ride from Guadalajara to Mex-
ico City was without incident, and Santoro
and Petrelli registered at the Regis. Hank
put up at the Roma, a cheaper hotel.

“You find this Yucateco and see what
he’s got,” Santoro ordered.

“p]] see him the first thing,” Hank
promised.

However, his first act in Mexico City was
to send a telegram to Customs Agents
Echols and Simpson which read, “Come on
down. I’m in up to my ears.”

Then the undercover man took a taxi
to a point just north of the Zocalo, and
walked toward the thieves’ market. In a
side street he found a second hand store,
and inside it was Yucateco. Hank showed
him the letter from Pico.

Yucateco, fat like his brother, rubbed
his hands. “I can let you have a kilo of
heroin for 20,000 pesos,” he said. “When
do you-want delivery?”

“In about two days,” Lester said. “Tl
let you know.”

The next day an airplane brought Cus-
toms Agents Echols and Simpson from
Brownsville. They telephoned Hank, and
the three met at a secret rendezvous to g0
over the case.

ow

By this time, L«
gation of the Nev
swing in the Unit
toms men were 0
investigation by ‘
and the Bureau
aegis of top treé
tives.

Also participati
Harmon 0 P
agent in charge
case; Robert Art
ervisor in New Y
Price: C. Spivey
Frank E. Flynn,
Arizona, and Jo!
district attorney
took the field.

Information ©
had been made
both the custom
Narcotics, the ty
work as a team

Agents Echo!
at a Mexico Ci
were born on t!
ish like natives,
disclose their
times in the i
with their arr
passed themsel
seers, sometim:
occasion as pr<

Acting on t}
mafiy contacts
drug peddlers.
edge of the lal
derworld as fe.

Echols and £
pointments wi

characters. T

sations with bi

even rubbed :

Petrelli in ele’

But always tl

in the backg

went on co
which he pas:

When he ir
that Yucatecc
the two mobs
structed Han]
room at the I

Yucateco s
ing a cardbc
coffee-colore:
this was Me>
Yorkers test:
and passed c

Through »
acquainted
named “The
peddler and
two kilos of
livered in a <
It was pack:

With a ki
morphine pt
ordered spe
hands. The
ing their M
tered $1,000
When in a

over an en
for everyb«
Hank dul
Agents Ech
Through
up an ac
Léal, a ce
confided tl
sale. He !
the heroin
Mexican n
trail and h:
Santoro
can’t stick
Hank. “IT:
to register

Sa om a EERE sea oey a

(Ala.

13, 1890. )

~K CR

NE ia. BO
oe made as
*-* and
after final
, appeal,”
or»change
uly can be

venue was
owing such
m, several
ve entitled
nreputable
and preju-
ond infect.
ited by the
ho had ap-
iug, which
| exist, and
al. Held,
ppl-cation,
s on the is-

‘+h a nature
or life de-
‘he knowl-
from per
s his dis-
nment; es-
the court
illness; or
ion of the
discharge
ndant.
jurors for
‘3, are in-
bo issued;
rors were
uch words

Othe ack
nee there
ré, are no

id do not
rand jury
in -
| St r

vor on his

sly had a
nnocence,
“endant’s
‘pport the
“, and the
daughter,
lish a cer-
unect de-
and other

examina-

he “had
idant had
wife, ” is

fresh his
cle writ-
n held by
ifies con-
said, the

| clerk of
nows that
does not
ut show-
ihe com-
rivileged,
ides that
in pursu-
’ the cus-
are pre-
stated, as
of which

Ala.) HAWES

such registry was made, ard of the authority to
certify the same, * applics as well to records made
and kept without as to those kept within the state.

12. Where the record of a marriage in another
state is adinitted in evidence, a book admitted to
be “the last Code” of that state is admissible to
show who is the proper custodian of its marriage
records, under Code Ala. § 2790, which provides
that the statutes of another state, purporting to be

rinted by its authority, are evidence, without
urther proof.

18. Under Code Ala. § 2754, providing, inter
alia, that the court may state the evidence to the
jury when it is disputed, the court may state the
theorics which the evidence for both prosecution
and defense, respectively, tends to establish.

14. A charge that statements of jurors on their
voir dire, that they had no fixed opinion against
capital punishment, and that they believed con-
viction could be bad on circumstantial evidence,
in no way interfered with their right to determine
the amount or degree of proof necessary to con-
vict, is properly refused, as misleading the jury
to believe that they could acquit if the evidence
were wholly circumstantial, though convinced be-
yond a reasonable doubt.

15. It is proper to refuse instructions that if
defendant at the time of his second marriage,
which occurred about the time of the alleged mur-
ders, believed he had been divorced from his first
wife, the law imputes innocent motives to him in
contracting the second marriage, as such instruc-
tions are irrelevant.

16. It is proper to refuse instructions that, be-
yond the presumption of innocence, the law pre-
sumes that defendant had an affection for his child,
and that the jury might consider his natural rela-
tions and feelings towards her.

Appeal from criminal court, Jefferson
county; S. BE. GrReenr, Judge.

R. R. Hawes, or Dick Hawes, was in-
dicted for the murder of his young daugh-
ter, May Tlawes, “by drowning her, or by
sinothering her, or by strangling her, or
by some other means unknown to the
grand jury;” and at the same time two
other indictments were found against him,
one charging him with the murder of his
wife, Mrs. Emma Hawes, and the other
with the murder of another daughter,
Irene Hawes. The dead body of May
Hawes was found floating on the water
in Kast lake, near the city of Birmingham,
on Tuesday evening, December 4, 1888; and
the verdict of the coroner's jury was that
she came to her death Monday evening or
nieht, December 8d, at the hands of her
father. Defendant was married in Colum-
bus, Miss., on Wednesday, December 5th,
to Miss Mays Story; and on his return to
Birmingham with his wife, the next day,
he was arrested on the charge of murder.
Mis. Emma Hawes and Irene, a daughter
younger than May, had also disappeared,
and their bodies were found several days
afterwards, in the water at Lake View,
near Birmingham.

The three indictments were returned
January 21,1889. On January 24th defend-
ant filed an application for a change of
venue in each of the cases, which was over-
ruled on January 28th, and an exception
duly reserved by defendant. A second ap-
plication was made on February Sth, but
the cases were continued from March 4th
to April 22d; and on that day a third ap.
plication for a change of venue was made,
which the court refused, and defendant
duly excepted.

Being arraigned on the first indictment,
defendant moved to quash it, because the

vw STATE. 303

grand jury which presented it “was not
then adegally constituted grand jury, be-
cause said grand jury was ordered by the
court to be summoned, and was sum-
moned, to appear and serve as a grand
jury for one week, commencing on the 7th
Cay of January, 1889, whereas said indict-
ment was presented and filed in court on
the 21st day of January, after the expira-
tion of the time for which said grand jury
had been summoned to serve.” The venire
for the grand jurors was as follows: “You
are hereby commanded to summon the fol-
lowing named persons, to appear and serve
as grand jurors at the January term of the
criminal court of Jefferson county, begin-
ning on the 7th day of January, 1889, to
serve as grand jurors for the weck begin-
ning on the first Monday in January, that
being the 7th day of January, 1889; they
having been drawn according to law to
serve as grand jurors for said term of said
court.” The court overruled the motion
to quash, and defendant excepted. Defeud-
ant then moved to quash the special venire
of petit jurors summoned for the trial of
this and other capital cases, on the
grounds (1) that the special venire was or-
dered and drawn under the provisions of a
law enacted after the commission of the
offense, and after the finding of the indict-
ment; and (2) because there was no record
of the order, the minutes not having’ been

written up by the clerk. The court also:

overruled this motion, and defendant ex-
cepted.

During the organization of the jury, the
name of [. A. Penn having been drawn, he
was examined under oath by the court
touching his qualifications as a juror, wus
declared Competent, and was accepted by
the state. Defendant then asked the court
to “ask him whether or not, up to this
time, he has had an opinion, which would
bias his verdict, as to the guilt or inno-
cence of the defendant.” The court de-
clined to ask this question, and defendant
excepted, and hethen challengcd said juror
peremptorily. After 12 jurors had been
chosen and sworn to try the case accord-
ing to law, and before the indictment was
read to them, G. B. Gordon, one of the 12
jurors chosen, applicd to the eourt to be
excused, because of the sickness of his wile;
and Dr. A. M. Boland, a practicing physi-
cian in Birmingham, being sworn, stated
that the wife of suid Gordon was under his
treatment, that she was suffering from a
complication of diseases, and that her safe-
ty, comfort, and life required the presence
and attendance of her husband. The eourt
thereupon excused said juror, and the de-
fendant excepted. After said juror had
been discharged, defendant then and thera
moved the court to discharge him; which
motion was overruled by theeourt, and de-
fendant excepted.

Defendant objected to all evidence show-
ing, or tending to show, the death of Mrs.
Hawes and Irene, and any and ail cir-
cumstances connected with their death,
and excepted to the overruling of these ob.
jections.

The prosecution offered in evidence what
purported to bea transeript of the bond
and marriage license authorizing the mar-
riage of R. R. Haves and Mays Story,


as to public sentiment are to the effect
that whatever fecling at one time existed
to prevent a fair and impartial trial had
subsided, abated, and been dissipated, and
that there was no such feeling or prejudice
at the time of the affidavits as would pre-
vent such a trial; and from. their own
knowledge of public sentiment, derived
from these sources, these affiants swear
that the exeitement and prejudice existing
against the defendant soonafterhis arrest
have been allayed, that it did not exist at
the tine of the trial, and that defendant
could then have a fair and impartial trial.
Here, then, was the case upon which the
judge of the criminal court acted. Thede-
fendant showed excitement and prejudice
against him carly in December, 1888, which,
under the rulings in Scams’ Case, supra,
would then have entitled him to a change
of venue. Seven reputable witnesses testi-
fy, from their knowledge of public senti-
ment, that this excitement and prejudice
continued to the time of the trial, in the
latter part of April, 1889, and then infected
the proceedings. Per contra, 65 reputable
witnesses, with apparently better Oppor-
tunities of knowing whereof they speak,
testify, from their knowledge of public sen-
timent, that this excitement and prejudice
did not continue to, and did not exist at
the time of, the trial; that a fair and im-
partial trial could be had, and the result
of it would be cheerfully accepted. On
this showing the final application was de-
nied. The authorities support the conclu-
sion reached by the court below. The in-
quiry related necessarily to the time of the
trial. State v. Greer, 22 W. Va. 800. The
denial of motions for a change of venue,
under the circumstances shown here, and
on evidence simliar to that presented in
this record, has been universally sustained
in the courts of last resort in other sta tes.
Thus in Poe vy. State, 10 Lea, 673, it ap-
peared that “when the prisoners were first
arrested, in February, 1881, the people liv-
ing in the vicinity of the place where the
crime was committed were inflamed
against the prisoners, and mob violence
was threatened. * * #* Nothing of the
kind occurred, or appears to have existed,
at the time of the second trial. All excite.
ment had died out, a jury was readily im-
paneled, * * * and a verdict rendered
in the usual way.” The refusal of a change
of venue wus held proper. So in State v.
Rhea, 25 Kan. 576, the application was
supported by the affidavit of defendant,
alleging prejudice, and setting out sun-
dry newspaper articles published in the
county, containing statements of facts sim-
ilar to those disclosed on the trial, and
severely denouncing the defendant; and
also by the affidavit of one of the party
which was engaged in the search for de-
fendant, to the effect that public feeling
was very bitter and denunciatory against
him. There were 21 ecounte -aflidavits, de-
nying general prejudice against defendant;
and the refusal of the application was sus-
tained. And in the ease of Statev. Adams,
20 Kan. 3811, the application was support-
ed by “the affidavits of 17 persons, allshow-
ing more or less acquaintance with public
opinion, some alleging that they had heard
frequent threats against the defendant,

308 SOUTHERN REPORTER, Vor. 7. (Ala.

and all expressing an opinion that there
wassuch a prejudiceagainst him as Would
prevent a fair trial. In opposition. there-
to, the state filed the aflidavits ‘of 19 per-
sons, Showing fully as great, if nota great.
er, knowledge of the general talk and sen-
timent of the community, and expressing
the opinion that there was no such preju-
dice against him, and thut there was no
reason Why he could not obtain a fair and
impartialtrial. Without noticing in detail
all the matters referred to in these aflida-
vits,” says Justice Brewer, “we May say,
in general, that a perusal of them inclines
us decidedly to the opinion that the ruling
of the court [in refusing the application,
Was correct,” and it was so determined.
In Bohan’s Case the application appears
to have been rested on the existence ofa
“prejudiced, embittered, and poisoned”
state of the public mind, which had been
engendered by the killing of two men, and
overdrawn and inflammatory newspaper
accounts of the crime, and evidenced by
the fact that a lawless mob had attempted
the life of the prisoner, and had attacked
the jail of the county in their efforts to
summarily punish him. ‘The application
was supported by the aflidavits of the
prisoner, the sheriff, and the jailer, and ex-
cerpts from the newspapers. “These atli-
davits,” says KINGMAN, C, J., “made out
& prima facie case for removal; but the
state read a great number [over ninety]
affidavits, from citizens of each of the
townships of the county, abundantly
showing that there was no such state of
feeling gene ‘ally prevailing throughout the
county as would prevent the accused from
having a fair and impartial trial therein,
or would even make it difficult to obtain
an impartial jury for the trial.” And the
action of the lower court, denying the mo-
tion for a change of venue, was affirmed.
State v. Bohan, 15 Kan. 407.

sut perhaps the strongest casein support
of the action of thecriminalcourtof J cifer-
son, to be found in the books, is that of
People v. Goldenson, decided by the su-
preme court of California. The defendant,
himself a youth, had causelessly and wan-
tonly murdered a girl about i4 years of
age. The showing made fora change of
venue, and the reasons of the court forsus-
taining a denial of the motion, are thus stat-
ed by PATERSON, J.: “In support of their
motion for a change of ven ue, counsel for
defendant made what appears to be a very
strong showing. It appears from the af-
fidavits that, within a tew days after the
homicide had occurred, a crowd of people
assembled in front of the house of said de-
fendant, and some of them cried out:
‘Close him up;’ ‘Make the Jew close up;’
‘Hang him;’ ‘Lynch him.’ Thata guard
of police was necessary at that time to
protect the property of defendant’s fam-
ily. That for several days defendant's rel-
atives feared to leave their home. That
theshutters and windows of affiant’s store
were broken by some of the excited people
gathered there, and that, on the occasion
of the attempted removal of defendant’s
family, some of their property had been in-
jured, and that for several days succeeding
November 10, 1886, many people remained
continuously in the vicinity of defendant’s

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Ala.) HAWES

home, uttering threats of violence against
defendant and his fainily. That the news-
papers in said city and county were daily
denouncing said defendant, and demanding
his immediate execution; and that, for
the reasons given, it Was impossible for
defendant to receive a fair and impartial
trial in said city andcounty. Mrs. Gold-
enson, the mother of defendant, incorporat-
ed in her aflidavit clippings from the news-
papers, describing a meeting which took
place at Metropolitan Hall on November
12,1886. Itappears from said articles that
said meeting was held for the purpose of
‘aising money for the mother and grand-
mother of the deceased, and to engage
counsel to assist in the prosecution of the
defendant, but that many turbulent acts
and threats of mob violence were indulged
in by members of said meeting. That on
the night of said meeting tho sheriff and
chief of police had the jail, where the de-
fendant was confined, guarded by a large
force of men, well armed, and precautions
had been taken against any unlawful as-
sault or attack, That, about 8:30 o’clock
of the night in question, several thousand
people assembled in front of said jail, and
many appeals were made for immediate
violence; and that, finally, the crowd was
driven away and dispersed by a deter-
nined effort of a large force of police, but
not until many blows had been given and
interchanged. It further appears, from the
affidavit first quoted, ‘that an attempt to
remove their property on November 13th
was frustrated by the offer of violence;
that on November 16th, under the protec-
tion of the police, a removal ras effected ;
that affant had read highly inflammatory
articles in the papers, calling for the
speedy trial and execution of defendant,
and had heard many bitter and hostile
expressions of opinion by citizens towards
said defendant.’ Ifthis condition of affairs
existed at the time of the trial, it must be
admitted that the city of San Francisco
was not a proper community from which
toattempt to select a fair and impartial
jury for the trial of the defendant. When
the public mind is Wroughtinto such frenzy,
and the public press sustains enraged citi-
2CNS, Organized for avenging crime, in their
unlawful attempts to overcome the duly-
constituted officers of the law, and only
the superior force of the latter prevents
mob execution, no man whose blood is
thus demanded can hope to secure the
rights guarantied to him by the constitu-
tion. It is impossible, under such condi-
tions, to secure an equal, exact, and im-
partial interpretation and exccution of
the laws: which is not only the right of
every person, but which is essential to the
Welfare of alland the conservation of good
Bovernment. But, while the facts stated
In the affidavits on behalf of the defendant
are admitted to be truesubstantially, there
ure two suflicient reasons why the order
of the court below denying the motion for
change of venue should not be disturbed:
First. Because the principal occurrences,
upon which affiants for defendant based
their belief that a fair and impartial trial
could not be had, transpired within a few
days after the homicide, and the counter-
allidavits filed by the prosecution tended

vu STATE, 309

to show that the excitement whieh had
been aroused by the homicide had entirely
subsided, and had not prevailed for three

weeks prior to the time of the application
for a change of venue.
under the showings made by the respect-
ive parties, the court abused its discretion
in denying the motion. Such applications
are addressed to the sound discretion of
the court, and, where error is assigned,
a clear case should be shown by the ree.
ord, or this court Will not interfere, ” Peo-
ple v. Goldenson, 76 Cal. 328,19 Pace. Rep.
161.

The excitement in Goldenson’s Case ap-
pears to have been even greater than that
shown to have existed in Birmingham on
the 8th of December. The newspapers were
inflammatory and denuneiatory, whieh
they were not in this case. Bittér feeling
and prejudice, are even more clearly shown
to have existed
crime in that case than in this. A much
shorter time elapsed between the da te of
the crime and public excitement aud the
trial there than here. There it was three
weeks; here it was Over four months.
The proof of abatement and subsidence is
very much stronger in this case than in
that. All in all, that was a very much
stronger showing for x removal of the
trial than is made here, and hence pre-
scented a very much stronger case for a re-
versal of the action of the primary court.
We do not think we would, on that show-
ing, have reached the conclusion Which the
California court reached, and hence we do
not adopt the language we have quoted.
But we do adopt the principle acted on by,
that court, that the existence of popular
prejudice, however bitter and violent, at a
given time, will not authorize a removal
of the trial if there has been time for the
subsidence of it, and if the aflidavits, by a
fair and reasonable preponderance, show
that the excitement, bias, and prejudice
have subsided and been allayed in such
sort that it is fairly shown that a jury
could and would be impaneled in the
county. proceed withits deliberations, and
reach its verdict free from the duress of
public opinion, and undeterred from anac-
quittal of the defendant by the adverse
sentiment of the community. Guided by
this principle, and the authorities cited,
and looking alone to the evidence adduced
on the trial of this issue before the judge
of the criminal court of Jefferson, which
each member of this court has carefully ex-
amined, we are of one mind, that it does
not appear that he erred in overruling the
application for a change of venue,

We have not been aided to this conclu-
sion by a consideration of the fact that a
jury, presumably free from bias and preju-
dice, was readily and easily obtained.
That matter was not before the primary
court when it acted on the motion, and
hence not properly before us in reviewing
that action. Moreover, the personal qual-
ifications of jurors is not the inquiry in-
volved in the statute Which authorizes a
change of venue, so much as whether there
is such a general public sentiment against
the defendant as would tend to intimidate
the honest and personally unbiased ju-
ror, and deter him, even Without his being

Wecannot Say that,

immediately after the

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In Powell's Case it is said: “The general stances, ” Parsons y. State, 22 Ala. 53.
rule, as laid down by the highest authori- It is true that the point thus discussed
ties on the criminal law, is that a jury, | was not directly at issue jin the Parsons’

once sworn and charged in a case affecting Case, and hence the language we have °

life or member, cannot be discharged with. quoted is obiter dictum. But it is in line
out giving a verdict. Among: the excep- | with all previous adjudications in this
tions to this rule is this: That a court state defining the hecessity which wil] au-
May discharge a jury in any case of press- thorize the discharge of a jury, and is but
ing necessity, and should do so whenever the heralding of another “of the progeny
such a case is made to appear, ” Powell | of the principle of necessity, "ag expounded
V. State, 19 Ala. 5S0.. The sudden illness | in the earlier ‘ase Of Nugent y. State, su-
of a juror, or of the prisoner, so that the pra.
trial eannot proceed, are ascertained cases But we need not rest ourapproval of the
of necessity, and serve as €xainples to show primary court’s action alone on the cases
What the law means by a case of neces- | and considerations above ad verted to,
sity.” McCauley y, State, 26 Ala. 135. There is no case to be found jin the books
In Ned’s Case, supra, the following P©Op- | which, in dicta or otherwise, expressly neg-
Ositions were laid down, as being fully atives the Correctness of such action, un-
Sustained by the authorities: “(1) That | der the circumstances shown by this rec-
courts have not, in Capital cases, a discre- | ord. In one ‘ase, and one only, so far ag
tionary authority to discharge a jury after exhaustive investigation By the court and
evidence given, (2) That a jury is ipso counsel discloses, this precise question was
facto discharged by the termination of the | fairly presented, and upon its decision
authority of the court to which it is at- | hung the life of the prisoner, In that case
tached, (3) That a court does possess the | it was held that the serious sickness of the
power to discharge a jury in any Case of | wife of a juror—an illness not shown to
Pressing: necessity, and should exercise it | have been so critical as in the present case
Wheveversuch case is made to appear, (4) —Ppresented a necessity for the discharge of
That sudden illness of a juror or of the |} the jury, without prejudice to further prog-
prisoner, so that the tria] cannot procecd, | ecution. Com. y. ells, 9 Leizh, 613. And
are ascertained cases of necessity, and that & strictly analogous cage Was decided by
many others exist, which ean Only be de- | the West Virginia court, where it wag held
fined when particular cases arise,” ete. | a necessity to discharge a juror was pro-
And, as further defining the necessity | duced by the death of his son, and the ef-
whieh will authorize the discharge of the | fect on his mind of information of his be-
jury, Mr. Justice GOLDTHWAITE continues: reavement. State y. Davis, 31 W. Va. 390,
“The law declares that every one shall be | 7 S. E. Rep. 24,
entitled to the benefit of a trial by jury, The case in hand is strengthened by the
and, as long as they continue in health and fact that our statute authorizes the court
capable of reasoning on his case, he is en- | to discharge a juror on account of his ilj-
titled to the exercise of those DOWers. | ness, or for any other cause which in the
Whenever from exhaustion, or any Other | opinion of the court, renders it necessary,
cause, a juror becomes unable to exercise Code, § 4453, And, while the necessity must
these functions, and the fact is shown to | be of the Class defined by the adjudged
the court to be such as must continue, cases to which reference has been had, sud-
then a ease of necessity has occurred, and den, unforeseen by the court, irremovable,
the jury ought to be discharged,” Ned y. ant incapacitating ajurororthejury or the
State, 7 Port, (Ala.) 213. judge, or prisoner, or, under some circum-
In the case at bar the necessity for dis- stances, the Prosecuting oflicer, from prop-
charging’ the juror Gordon resulted trom erly and efliciently discharging their duties,
the sickness of his wife in such sort that or attending to the trial, yet the “atute
her life, as the record shows, depended, in | is, at last, a legislative expression to the
the opinion of the attending Physician, on effect that the instances of such necessity
the personal attention of her husband; are much more nhunierous than were for-
and, as the record further recites, the erit- merly supposed by some courts. Enact-
ical illness of the wife, and the necessity of ments of this character have been held to
her husband’s presence to save her life, in- authorize the discharge of a jury under cir-
capacitated the juror for the performance cumstances which would not have justified
Of his duties ag such. We ean easily con- that action at the common law, (Crook-
ceive how this state of things might, and ham y, State, 5 W. Va. 510;) but, we ap-
naturally Would, have rendered this juror prehend, to accord them this eliect would
Incapable of that ‘alm and deliberate con- be to encroach upon the constitutional
Rideration and reasoning which is of the protection against putting a defendant
essence of the office of juror, and forthe ab- twice in jeopardy for the same offense.
enee Of Which, in any member of the panel, The motion of the defendant to quash
the jury should be discharged, AS was the indictment, on the ground that the
suld in’ Parsons’ Case: “It certainly re- grand jury which returned it was sum-
quires no argument to show that, if the moned for one week only, and the indict
Wife or child of a juror is at the point of | ment was not returned until after the
death, he would not be in a state of mind lapse of that time, was properly overruled.
to discharge the duties which devolved up- | The record does not support the averment
On him with that degree of patience, calm- of fact upon which reliance wag had. On
ness, and deliberation Which was due in | the contrary, it affirmatively appears that
the inve stigation of cases of this magni- | the grand jurors were drawn and sum-
tnde and importance; and it Would un- | mone “Torthe term,” as the law requires,
wWestionably be the duty of the court to | The words, “to serve as grand jurors for
Vischaree a juror, under such circum. | the week,” are inconsistent with and con-

Qt

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—s5

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\

=


“310

‘conscious of the insidious influenee, from

acquitting the defendant, though he might
have a reasonable doubt of guilt. Seams
v. State, 84 Ala. 410.4 South. Rep. 521;
Posey v. State, 73 Ala.490; State v. Ford,
87 La. Ann. 448.. The court did not err in
refusing to examine witnesses ore tenus,
on the issue presented by the application
for a change of venue. Taylor v. State,
48 Ala. 180.

It is contended for appellant that the
action of the court in discharging the ju-
ror Gordon, after arraignment, plea, and
the completion of the panel, and hence aft-
er the defendant had been put in jeopardy,
was unauthorized and illegal, and operat-
ed to acquit him. The question as to
when, and under what circumstanees, a
juror may be discharged before deliverance
made, without affording the prisoner pro-
tection from further prosecution under the
common law guaranty, now embodied in
the federal, and most, if not all, the state,
constitutions, that “no person shall, for
the same ojfense, be twice put in jeopardy
of life or limb,” has been much discussed
by jurisconsults, and many times, with
varying and inconsistent results, adjudged
by the courts of this country and of Ene-
land. The rule was thus announced by
Lord Coke: “To speak it here, once for
all, if any person be indicted for treason,
or of felony or larceny, and plead not
guilty, and thereupon a jury is returned
and sworn, their verdict must be heard,
and they cannot be discharged.” Without
impugning the doctrine thus stated, as a
correct general rule, it becomes apparent,
at an early day, that, in the nature of
things, it must be subject to many excep-
tions. Perhaps the first of these to become
established was that which allowed the
discharge of the jury, without prejudice to
further prosecution, when the judge had
completed his cireuit, and the court in the
last county of his riding was adjourned,
the jury in the meantime being carted aft-
er him through the circuit. Afterwards it
was adjudged, upon full consideration by
the judges en bank, that the prisoner’s con-
sent thereto would authorize the with-
drawal of a juror, and a continuance of
the prosecution; and, in the case in which
this exception was established, it was sug-
gested that there might be several. other
exceptions, resulting from the impossibil-
ity of proeceding further with the trial.
And so, from time to time, other cases of

-necessity have been adjudged sufficient to

authorize ‘the discharge of a jury without
verdict, and without the prisoner’s con-
sent. Each time a new exception to the
rule has been admitted,it hasbeen theecus-
tom of most courts to say that the addi-
tional exception thus allowed, with those
theretofore established, constituted the
only eases in which a jury could be dis-
charged, and, in this way, not a few dicta
have been lodged in the Reports which
would exclude, not only the discharge of a
juror on account of thesickness of his fam-
ily, but many other exceptions which be-
caine afterwards to be well recognized. In
this country there are two distinct lines of
authority on the question. The supreme
courts of the United States and of several
of the states hold that the discharge

SOUTHERN REPORTER, Vou. 7.

(Ala.

of the jury rests largely in the unrevisa.
ble diseretion of the trial court. U. S. y.
Perez, 9 Wheat. 579; People v. Olectt, 2
Johns. Cas. 801; Com. v. Purchase, 2 Pick.
521; U. S. v. Shoemaker, 2 Mclean, 114.
The courts of last resort of other states,
and among them Alabama, hold that the
excrcise of the power to discharge a jury
isnot a matter of unbridled discretion in
the primary court, but that its action in
that behalf is always open to review on
appeal or writ of error. Com. v. Cook, 6
Serg. & R. 577; Mahala v. State, 10 Yerg.
533; Lee v. State, 26 Ark. 261; State v.
{pbraim,2 Dev. & B. 162; Ned. v. State, 7
Port. (Ala.) 189; Mixon v. State, 55 Ala.
129; Cook v. State, 60 Ala. 39.

In these jurisdictions the discharge of a
jury without verdict, and before the close
of the court, or, at least, before impossi-
bility of an agreement has been reasona-
bly demonstrated, acquits the defendant,
unless something has occurred after jury
sworn which, in legal contemplation, neces-
sitates the withdrawal of the case. The
facts presenting such necessity, recognized
by all courts as authorizing: the discharge
of the jury, are the sickness of the judge,
(Nugent v. State, 4 Stew. & P.72;) or ju-
ror, (Fletcher v. State, 6 Humph. 249; Rex
v. Edwards,4 Taunt. 809; Hector v. State,
2 Mo. 165;) or of the prisoner, (Brown v.
State, 88 Tex. 482; State v. Wiseman, 68 N.
C. 203; Lee v. State, 26 Ark. 260;) of the es-
cape of a juror from his fellows, (State v.
Hall, 9 N. J. Law, 256; Reg. v. Ward, 10
Cox, Crim. Cas. 5733) or the escape of the
prisoner, (In re Battle, 7 Ala. 259;) and,
it would seem, the sudden illness of the so-
licitor, unless he have assistants or associ-
ates who can proceed with thecase, (U.S.
v. Watson, 3 Ben. 1.)

In this state the broad doctrine of neces-
sity has been thoroughly established, and
it may be considered as settled law that
whenever, from any cause, whether those
enumerated above, or any other, the court
is unable to proceed with the trial, and the
jury with its deliberations, and such cause
supervencs pending trial, and is of a nat-
ure not to be foreseen, and cannot. be re-
moved, the court is authorized to dis-
charge the jury, and hold the prisoner for
further trial. In Nugent’s Case, where the
sickness of the judge was held to justify the
discharge of the jury, after reviewing sey-
eral of the grounds upon which the dis-
charge of the jury is authorized, the court
proceeds: “But, whatever should be the
ground of the discharge of the jury, it
should bealways on this selfsame principle
of necessity. Otherwise it would seem
that the prisoner should not be again put
upon his trial. * * * The principle once
settled, of necessity we will only have to
inquire if the exception is embraced. by it;
and, although the progeny may be nuimer-
ous, it seems to me that there will never
be much difficulty in the application of the
rule.” “All the authorities admit that
When any juror becomes: mentally dis-
abled, by sickness or intoxication, it is
proper to discharge the jury; and, wheth-
erthe mental inability be produced by sick-

ness, fatigue, or incurable prejudice, the
| application of the principle must be the
|; same.” Nugent v. State, 4 Stew. & P. 79.

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"Hayes, a resident of Shiloh section of Marengo Co., murdered A.T.Jackson, »
prominent storekeeper and farmer of Moore's Valley in South Marengo, and

Mrs. Jackson at their place of business shortly after 10 o'clock on nite

of 12-19-1941. Hayes entered store between 10:00 and 10:15 and made

purchase amounting to $26. Jackson opened safe to make change and he opened
fire without warning. Mrs Jackson died instantly and Mr. Jackson the next
morning in Selma hospital. Their 15 year old son, Rudolph, had left store
shortly before and returned to investigate shots. He was shot in neck but not
seriously wounded. $360 taken from safe of store. Posses trailing Jackson exchanged
shots with him twice before losing him in woody section in southwest section
of county. Mr. Jackson was 47 and his wife, 39. DEMOPOLIS TIMES 12-25-1941.

ED HAYES,JR. ,/bl, elect. 5-1-1942. (Marengo) Bf yearr lA



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HAYS, Heenry Francis, white, electrocuted ALSP (Mobile Co.), June 6, 1997.

”Henry Hays, a member of the Ku Klux Klan, was sentenced to die in Alabama’s electric
chair for the 1981 kidnapping and murder of Michael Donald. Donald, a black teen-ager, had
been abducted from downtown Mobile, Ala., forced into a car at gunpoint and taken to a wooded
area where he was stabbed and beaten. After he was dead, Harris and an accomplice put
Donald’s body in the trunk of a car. Hays then cut Donald’s throat, and the two tied a noose
around his neck and bought him back to Mobile, where he was hanged from a tree.”-Death Row,

1996, V. 6, page 163.

it
> ax
a4
s
q
I
4%

Se:

- cide or the day after the appellant pawned

aoe wt

~ troduced’ in evidence ‘and the. appellant

‘admitted that it was his own’ pistol. The
proof showed: that on the day of the homi-

4.28 special pistol. The police redeemed tt
for $25 and ‘this is the pistol which was

introduced in evidence. No money” was
found. by the police on the body of de-

ceased. Only a one dollar bill in a record *

‘ant when he was arrested. © On the morn-
ing of February 2, 1948, appellant went to

4 clothing ‘store nearby in the City of

Birmingham: and purchased 4 suit for”
$77.43. He made. a down payment et ae

S50. This amount was paid in bills and in

_ nickels, , dimes and quarters, to. the extent.
(Of, $8.5 Ce at ae AF ag idle

“pn Le appellant testified that, unaccom-
panied by any one, he went to the store of

* »

“Trotter on the morning in question at ‘about

“710 to 7:15 and purchased ‘some milk,

> erackers and sardines. He left the bottle of |

milk there but was not sure whether he left
half a box of crackers and half a box of
sardines. According to his testimony he was
in Trotter’s store five oF six minutes. He
denied, however, that he shot the deceased

* or took any money from the person or store
of the deceased: and according to his testi-

mony: he procured the moncy which he

had inhis possession and with which he

made. the: cash payment. for his. suit. by
gambling with some, of his friends and ac-
quaintances. He testified that he went to
the clothing store kind of early from Trot-

$8 SOUTHERN REPORTER, 2d SERIES

tioned by the courts We set out the perti-

nent part of the transcript as follows. »

oo MQy What is your name? A. Jack C.

a eee

‘Sims.

© 4Q, Jack, do you want to testify in this

{

case? A. ‘Yes sit. aoe

On. You want to tell the truth about it?
A. Yes,site be Be
Sept Qs ceou understand that any testi-
mony you might give of course might be
used against you in your own case? you
understand that? Ae ees sir.

eetQie Do you want to tell the truth about
it and tell it all, is that what you’ want to
do? A.) Yes ae me EO
There was no objection or exception to

the action of the court, but jt is contended

‘that such objection or exception is not nec
essary. for review here because of the pro-

visions of the automatic, appeal act which

‘reads as, follows: )

asGin' all cases: of automatic appeals the
appellate court may consider, at its discre-
‘tion, any testimony. that was seriously prej-
“ydicial to the rights of the appellant, and
may reverse thereon even though no Jawful
objection or exception was made thereto,”
$f 382(10);, Title 15, Code of 1940, Pocket
Part. ¢ es a5 ge

11,2) The purpose of objection and ex-
‘ception is. to challenge the correctness of
the action of the court so that such action
may be corrected by the court itself, if
deemed erroneous, and to lay the founda-
‘tion for review, if necessary, by the appel-
late tribunal. Without such objection and

’ 2 zi : ‘eq ei 7 ee a ‘* is ; ¢
ter’s store, &) distance of 'six.,OT SEVERN exception, the trial court ordinarily has the

ae blocks. -He denied that he had any agree-
ment with Jack Sims for any. kind ofa deal.

and. testified. that he was in. another part
of the City of Birmingham at the time the
homicide was committed. sae sok al
. Reversal: is sought on a ‘number of
“grounds which will ‘be considered in the

us.

‘was in error: when the court made a pre-

- \iminary examination of Jack Sims, witness —
for the state. The alleged error lies in the
“manner: in ‘which the witness was ques-

AS Peek ae

order in which they have been presented to

Haye ttds earnestly insisted that the court

“right to assume that its action is acqui-
‘esced in and free from error. 3 CJ.,.8
-g0l, pages 894, 995; 4 C.J.S. Appeal and
‘Error, § 323. So where the question has
been presented we have been careful to see
4f the legislature intended by the automatic
“appeal act to take the particular ruling
from out the general rule. We have held
that the act does not embrace the court's
oral. charge when no exception is taken
thereto. Easley ve State, 246 Ala. 359, 20
Goze O195 Reedy v. State, 246 Ala. 363,
20 So.2d 528; James v- State, 246 Ala. 617,
-21.S0.2d 847. :

Ses See
5 ee ee

Bet iptesPOs

i AS Bee

Sine aces SP

ce Cite ns 38 802d 593. ee Zia
7.20 AM. tee pheatoaupenent with the ap-

truthfulness of thoge two witnesses, they
cannot convict the defendant?iric ) vise
“41, The court. charges the jury, that
if a conviction in this case. depends upon
the testimony of any three witnesses ; and.
if the jury have a reasonable doubt, as to
the truthfulness of those three witnesses,
they cannot ‘conyict the defendant.” © |
“55. The court charges the jury that de-
fendant' cannot be convicted upon the testi-

mony’ of Jack: ‘Black ‘Jack’.Sims: unless
that testimony is corroborated by the testi- .

mony of other witnesses tending’ to ‘con-
nect the defendant with the commission
of the offense with which: he. is: charged,

and that unless you believe from the evi-
dence beyond a reasonable doubt that Mc-
Kinley’ Burnett have testified truthfully

in this’ case you cannot find the ae
ant guilty.”
“56... The court charges. Whe jury “that

defendant cannot’ be. convicted » ‘upon, ‘the

testimony of Jack ‘Black Jack’ Sims’ un-
less that testimony is corroborated by ‘the
testimony of. other ‘witnesses: tending: to
connect the defendant with the commission
of the offense with which: he ‘is charged,
and you, gentlemen ‘of the’ jury,°in your -
discretion may ‘determine ‘the strength of .
the evidence ‘tending to: connect ‘the de-
fendant with the crime > named | in. the: ‘dn-
dictment.? 25.4 Roan Soa At .

Josh Mullins, In « of f Birmingham, for
appellant.

A.A, Carinichacl, Atty. lane ‘and. Wn.

N, McQueen, Asst, Atty, Gen, for tthe
State. sees

STAKELY, Susie eae
The appellant Perry Lee Haygood, elise
Kemp. Perry, was indicted, tried and con-

victed of murder in the first degree. ‘His.

punishment was fixed at death by electro-

cution.. .This appeal | comes ito this court:
under the automatic. appeal act. General

Acts of .1943, p, 217, et, Sed Code. 1940,
Tit. 15, § 382(1) et seq. ied

Jack Sims, witness for the state, by his
own admission was an accomplice of appel-
lant and like appellant has ‘also’ been in-:
dicted for the. murder: of Wy J. Trotter,
deceased. . According to his testimony, on
Monday, F Rebruary 2, 1948, at about Z. 15 to.

pellant in the store. s

pellant, he; met appellant at the corner of
10th. Avenue) and 17th, Street. in, the City
of Birmingham. They. then proceeded’ to:
the store of W. J. Trotter at the corner of

18th Street and: 10th Avenue in the: City

of Birmingham. The,‘store:was..a’ small
delicatessen’ store. After ordering. two
chocolate milks, a box of crackers and two
‘cans of sardines, they. consumed part of
this food.and then according to the testi-
mony. of Jack Sims, . ‘appellant. stated to
the deceased: that this was.a. stick-up and.
thereupon. shot him through the head and

an the body: causing his death. Jack Sims.

thereupon rati out’ of. the store; deaving ap- '

Suna

: The balance of the. teatintiOniy intfoduced

by ‘the state tended to show ‘the following,
- According to the wife. of :deceased, de-

ceased left his home about!20. minutes after:
‘seven'A,M, to go to’his delicatessen store,

which was two or three’ ‘blocks: from: his.
home.’ He ‘took: with‘ him some money:

which represented the : ‘proceeds of sales at :
the store which he had: kept the preceding
night under a rug in the house. His wife

dearned of his death about 20 minutes after. —

ephe A.M. on the same \morning, ©.
“Appellant, ' another ‘manatd Trotter

‘were seen’ in the store of Trotter by Me-.

_ Kinley Burnett who passed by on the side~
walk between 7:30 'to'8:00 A.M. on his way

to school." Appellant’ ‘with ‘another: man.

“was also’ secti ‘in ‘the’ vicinity, of the ‘store

at 7:00 to 7:10 A.M. by A. R, Peeler, store — Ae
‘manager ” of Hill Grocery Co.” “According

*) to ‘experts of the Identification Bureau’ of 08
». thé Police’ Department Of! the City es

_ Birmingham finger’ prints ‘were found on
‘the box of crackérs ‘which was on the —

counter of thé store at the time the officers.

arrived’ and -the ‘contents’ of which’ had

been partly consumed,” These finger prints
matched: 'the:. finger prints © Of! appellant. —

‘The officers' also found on the counter. two.

milk bottles - with -chocolate : milk in them,

about half full and also one can of sar-
dines... Another: can, of sardines was) in
the can.opener on. the wall....Three bul-

lets. were discovered. i in the store or.in the —

body, of the deceased, all of which were —

of a size suitable. toa pistol, described as
38 aoe A .38 special pistol was in~

eel



Cb {

mw UY

L

High court sets June 6
execution date for Hayes

By The Associated Press

MONTGOMERY ~~ Henry Fran-
cis Hays, a former Ku Klux. Klan

member condemned to die for the »

1981 murder of a black teen-ager
whose body was hanged from a tree,
is scheduled to be executed June 6.

The Alabama Supreme Court on
Thursday set the execution date for
Hays, 42. The U.S. Supreme Court
recently turned aside his latest
appeal. ,

The execution order calls for
Hayes to die at 12:01 a.m. June 6 in
the electric chair at Holman Prison
near Atmore.

Hays was convicted in the death
of 19-year-old Michael Donald; who
was abducted at random from a
Mobile street on the hight of March
20, 1981.

Donald was choked, beaten end
had his throat cut before his Sacant

bur?

across from the sae Maice
where Hays was living. An autopsy
listed the cause of death as strangu-
lation.

Prosecutors said the killing was
carried out “to show Klan strength in
Alabama,” and it brought back chill-
ing images of hooded Klan mobs
with torches and er earlier this
century.

Hays, in an Associated Press |
interview last month, maintained he
took no part in ‘the abduction or
killing. He said he unwillingly joined
the United Klans of America to satis-
fy his father, an “exalted cyclops”

controlling the group’s south Alaba-

_ma operations. He blamed the KKK

link for his conviction.

James “Tiger” Knowles, 18 at the
time of the killing, testified that he
_and Hays picked Donald at random,
forced him into a car, then took him
into nearby Baldwin County and beat
him with a tree limb before putting a
noose around his neck.

Knowles was given a life sentence
in exchange for his testimony.
Lawyers for Hays say Knowles is
now in an undisclosed location in the
federal witness protection program.

The Donald slaying also had ram-
ifications in civil court. The Southern
_ Poverty Law Center filed a suit on
behalf of Donald’s mother, Beulah
‘Mae ‘Donald, and a jury eventually
returned a $7 million judgment in
her favor.

The UKA’s_ property near
Tuscaloosa later was sold, and Mrs.
_Donald, a mother of eight children,
- bought a house with money from the
award.

Donald’s brother, Stanley Donald,
43, said he plans to witness the exe-
cution, which is permitted under a
new state law.

The U.S, Supreme Court rejected
one of Hays’ last appeal attempts in
March. The Alabama attorney gen-
eral’s office on April 2 asked the
state Supreme Court to set Hays’
date with the electric chair.

The court’s order was announced
just hours before anothe” convicted
murderer, Walter Hill, was sched-
_uled to be put to death in Atmore at
12: 01 a.m. Friday.

Qo ge2ey” haw et

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FAGLE, Athi: AC

S]2 (1999

Execution of ex-Klansma

THE ASSOCIATED PRESS

‘Henry Francis Hays, a former

Ku ‘Klux Klan member condemned

to die for the 1981 murder of a
black teen-ager whose body was
hanged from a tree, is scheduled to
be executed June 6.

‘The Alabama Supreme Court on
Thursday set the execution date
for "Hays, 42. The U.S. Supreme
Court recently turned aside his lat-
est appeal.

The execution order calls for
Hayes to die at 12:01 a.m. June 6 in
the ‘electric chair at Holman Prison
near Atmore.

+

Anatteworsy
atte

Hays was convicted in the death
of 19-year-old Michael Donald, who
was abducted at rar a

- Mobile street, 0
March 20, 1981.

Mr. Donald was

choked, beaten

and his throat was ¢ut before his ©

body was hanged from.a tree on a
vacant lot in a downtown: neigh-

borhood, across from the apart- |

ment house where Hays was liv-
ing. An autopsy listed the cause of
death as strangulation.

Hays, in an Associated Press in-
terview last month, maintained he
took no part in the abduction or
killing. He said he unwillingly

pVECTISER

n set June 6 |

joined the United Klans of America
to satisfy his father, an “exalted cy-
clops” controlling fhe group’s
south Alabania operations.

‘James “Tiger” Knowles, 18 at the
time of the killing, testified that he
and Hays picked Mr. Donald at
random, forced him into a Car,
then took him into nearby Baldwin
County and beat him with a tree
limb before putting a noose around
his neck. Knowles was given a life
sentence in exchange for his testi-
mony. Lawyers for Hays say
Knowles is now in an undisclosed
location imsthe federal witness pro-
tection program.

4


2A Thursday, June 5, 1997

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CONTINUED FROM 1A

KILLER

Strom page 1A

beating him to death. Knowles
pleaded guilty to the federal charge
of violating Donald’s civil rights.

They allegedly drove his body to
a Mobile neighborhood and hanged
him from a tree on a vacant lot
across the street from a house
owned by Hays’ father, Bennie
Jack Hays. The elder Hays, a rank-
ing Klan officer, also was charged
as an accomplice in the murder
but died before his trial.

Hays’ brother-in-law, Frank Cox,
was convicted as an accomplice for
providing the rope used to hang
Donald.

The murder was allegedly a plan
hatched by the Klan to extract re-
venge afte a “itrdile County trial
of a black man accused of shooting
a white policeman ended in a hung
jury.

“The Klan decided to undertake
this crime to find.out what people
would do if they found a black per-
son hanging from a tree in Mobile
County,” said Alabama Assistant
Attorney General Joe Marston,

vho prosecuted Hays. “And they
did not use the term ‘black person.’
That was the purpose. And we
think that question should be an-
swered.”

Marston, who said he was “no

fan of the death penalty,” said
Hays deserved death, because his
crime ‘‘was as monstrous a case as

this state has seen.”’

The murder led to the financial
ruin of the Klan group to which

By Mike Cason
MONTGOMERY ADVERTISER

Condemned killer Henry Hays
doesn’t want an autopsy per-
formed on his body if his
planned execution takes place
at 12:01 a.m. Friday.

The state routinely performs
autopsies after executions.

“He doesn’t like the idea of be-
ing disfigured that way,” said
Richard Kerger, a Toledo, Ohio,

Vase

“Tt doesn’t seem necessary.
There’s not much of a mystery
as to how he died.”

Escambia County District At-
torney Mike Godwin said he or-
ders autopsies after executions.

Godwin said Kerger had spo-
ken with him about Hays’
wishes, but he plans to go ahead
with the autopsy, unless he gets
a court order to the contrary.

“The reason we have an au-
topsy is to make sure the state
carries out the execution prop-
erly.” Godwin said. “How do

utamey, who represents, Fors.

Hays belonged United Klans of
America. Donald’s mother, Beulah
Mae Donald, now deceased, won a
$7 million judgment against the
group in 1987, although only a

Condemned killer
doesn’t want autopsy

you know a person wasn’t mal-
treated or abused? And what’s
to keep someone from raising is-
sues about an execution years
from now?

“It’s really a public policy
matter,’ Godwin said. “I don’t
see any reason to vary from
that. If I’m under a court order
not to, that’s fine. I’m not going
to jump up and down about it.”

Kerger said he might file a
motion in federal court to block
the autopsy if Gov. Fob James
turns down Hays’ appeal for
clemency.

Carlos Rabren, director of the
Alabama Department of Foren-
sic Sciences, which performs
the autopsies, agreed with God-
win that the procedures are
good public policy.

Rabren said the autopsy
would cost less than $1,000.

“I can assure you it’s money
well spent in the public’s inter-
est and in the state’s interest,”
Rabren said.

small fraction of that was collected.

“It was kind of like putting the
final nail in their coffin,” said
Richard Cohen, an attorney with
the Southern Poverty Law Center,

which handled the civil case.

Hays has granted numerous in-
terviews with reporters as his exe-
cution date has approached. Char-
lie Bodiford, public information
officer at Holman, said Hays is
never reluctant to talk.

“He likes to do it,” Bodiford said.
“He’s a publicity-type; one of these
man-of-the-hour type guys. The in-
terviewer only has to ask a couple
of questions, and he’s off to the

races.”

Hays’ brother and sister pleaded
for mercy at a clemency hearing
conducted Tuesday by James’ legal
adviser, Bill Gray. Both attributed
Hays’ problems to a_ brutal up-
bringing by their father.

“I joined the Army,” said Ray
Hays, 43. “I left home, and I didn’t
come back. Henry didn’t do that.
He stayed. He was never given the
chance to grow up. He always had
to meet Dad’s approval, and he
never did.”

Others advocating mercy for
Hays said that Beulah Mae Donald
had asked for Hays’ life to be
spared before her death.

However, Marston pointed out
that Donald’s brother and sister
were planning to watch the execu-
tion.

Figures, who spent 10 years as a
prosecutor, said he ran across few
criminals as brutal as Hays.

“You begin to develop profiles,”
Figures said. “Henry Hays to me
fit the profile of a cold, calculating,
vicious murderer, and also one
who either subconsciously or con-
sciously believed so strongly in his
criminal deed that he will go to his
death without even exhibiting re-
morse.”

1Q99U0Id LOISIASIe1

Hays execution,
over death pena

By Garry Mitchell
Associated Press Writer

MOBILE — Throughout Alabama
history, as in much of the nation’s, the
execution of a white person for killing a
black has been rare. In fact, former Ku
Klux Klansman Henry Francis Hays is
now in line to be the first in the white-on-
black murder category in Alabama since
1913.

His scheduled execution Friday at
Holman Prison for the lynch-style killing

of a black teen-ager in Mobile has rekin-

dled debate over racial fairness and bias
in use of the death penalty.

“The death penalty in the state of
Alabama is overwhelmingly used in

“cases involving white victims, and dis-

proportionally in white victim cases with
minority defendants,” attorney Bryan
Stevenson of the Equal Justice Initiative
in Montgomery contends.

Stevenson added that many people
may “pat themselves on the back” and
cite the Hays execution as proof there’s
no racial bias in death sentences.
Instead, he said, the first execution for a
white-on-black murder in 83 years
“opens the door to the larger question
that ought to make everybody worry.”

But Assistant Attorney General Joe
Marston III said many variables come
into play in charging someone with capi-
tal murder in Alabama, including how
many actual cases a prosecutor has in
which a white has killed a black.

“Most murders are black-on-black,
but they are not capital murders. You’d
have to do some very deep and difficult

; AP
Henry Francis Hays is scheduled for
execution Friday at Holman Prison.

research on how many white-on-black
crimes you have, and how many fall into
capital murder categories,” Marston
said, dubious of statistical attacks on
Alabama’s prosecution history.
Currently, the Alabama Department
of Corrections has 149 men and four
women on death row — 89 whites, 63
blacks and one Asian. Assistant Attorney
General Clay Crenshaw said that of the
153 on death row “not more than three”
are whites convicted of killing blacks.
Watt Espy of the Capital Punishment
Research Project in Headland said the
last Alabama execution in a white-on-

Thursday
June 5, 1997
THE DOTHAN EAGLE

ty racial fairness

black. killing came in 1913. In that event,
two whites were hanged in Birmingham

_ , for killing a black cockfighting trainer.

Hays, 42, became eligible for the
death penalty because the victim’s wal-
let was stolen, making it murder in the
course of a _ robbery, Marston said
Wednesday.

But even a capital Siirder conviction
in Alabama does not always mean a trip
to the electric chair; an alternative sen-
tence is life in prison without parole.

In Hays’ case, the jury recommended

life in prison without parole for the killing .
of 19-year-old Michael Donald in 1981. :
But the judge overruled the jury and

imposed the death penalty in the case,
which drew widespread notice because
the black youth’s body was strung up in a
tree like an old-style Klan lynch victim.

In some other notable white-on-black
murder cases in Alabama, prosecutors
wanted the death penalty but could only
go for life in prison, such as in the Ku
Klux Klan bombing of 16th Street Baptist
Church in Birmingham in 1963.

John Yung of Montgomery, who as a
state prosecutor helped convict Robert
“Dynamite Bob” Chambliss in the bomb-
ing, which killed four black girls, said the
death penalty was not available when
Chambliss finally was prosecuted in the
1970s. Chambliss died in prison serving a
life sentence.

Nevertheless, Tonya D. McClary, an
attorney for the NAACP Legal Defense
and Educational Fund, Inc. in New
York, said as of July she could find only
five other cases of whites being executed
for killing blacks since 1976.


Klans

”

*

ae “whose body was hanged in a tree.

~ hatred” by prosecutors.

. without parole.
~- “*When the crime occu!

pet
SENS es

1 eae eras
é Yaak 2 ct 0 Ge

Ei ee.

man sentenced to electric chair.

-. sentence to death if a jury recommended life. The law was

wy, statute applied in the Hays case.

“. Circuit Judge Braxton Kittrell Jr. sentenced Henry
“Francis Hays, 29, to die in the electric chair for: the mur--
ler of Michael Donald, 19, labeled a “crime of racial

~=+A jury of 11 whites and one black in December con- |
victed Hays and recommended a sentence of life in prison .

ed on March 21, 1981, Alabama's
death penalty law prohibited a, judge from increasing

| Klans

1

‘From page Al ‘ec pay.”

But Hays’ father, Bennie Jack Hays, a 67-
‘year-old “Titan” in the United Klans of. -
~~. America, said his son was innocent and den- ©
*“ ounced the proceedings as the work of “liars. "

at
$

| “Pm the one they're picking on,” said the a P rion.
elder Hays. ito get to me, they:got my _

Fe ree "ag : 9 os é
'.KusKlux Klansman Hen pia
¢ oe rot pe se ey

Francis Hays ae Z a fa Ms be “quietly.

ba ages

ey ~

Satisfied that Henry Hays now knows all life = in A ma 4 : .
» 4s precious. You cannot pay a higher price cleryiprame handicaps 4 ace hog,
for murder than the price heis going to «

3 -<\ Kittrell set an April 30 date for Hays’
*~ Donald’s sister and brother, who sat.’ execution. But an appeal to higher state.”
| © through the trial and sentencing, left the “courts is automatic and the execution date.
‘courtroom immediately without comment. “routinely isset aside. ©
“Hays was convicted largely on the testi-
ony. oy KEK cohort, James “Tiger”, . ment. a
nowles, who pleaded guilty to a federal ©; ‘eo: distri Said cectaeday Gal
charge of violating Donald’s civil rights. : Be atrict attoapey 52i4. yallendtay, © 1
Knowles still awaits sentencing. The federal -
“charge carries a maximum penalty of life in“ sued further by the FBI and state authori. 28 Linda Odom. Marsal said the woman’ -

ee A AS ties! S00 identified herself as Linda Chastang when 7».
Knowles testified that the black youth —_ In support of the death penalty for Hays, phe Called his office last week: on

*“was snatched off a late-night Mobile street’
at ‘random and killed

changed later in 1981, but state attorneys said the earlier,”

However, the 40-year-old judge said he believed it was .<¢
, the intent of the Alabama Legislature to allow “the court :% 4
itself, and not the jury, to be. the final sentencing © as
* authority.” sy eae 5. See ae
“Judge Kittrell set a precedent. I hope it sticks,” said
District Attorney Chris Galanos, who had urged the judge |
“to impose the death penalty despite conflicting Alabama _
_ease law. Asai? Hee
Hays, who repeatedly denied killing the teenager, shook *
his head silently yesterday when asked if he had any com-
ment before sentencing. - oa ;
po 2 > See KLANSMAN, page_A2_
é oc

4%
op ;
roy

: =F AS SRE ~ = on
sane the high — upheld the death sen-:2!!
ae Ala -tence because the crime was one of racial 47.
tion for the mistrial of a black man accused. - j i ‘aici.
~ of killing a white policeman. 30,5 8 Us white pareont corte Br ere eatwes

~ killing was a Klan revenge plot im retalia-

white person.

Donald, a brick masonry student “wast Defense a ‘who is
: , : » Was ttorney M.A. Marsal, who is -
ie and strangled with a rope ina neigh- -. Seeking a new trial for Hays, had sought to“™“"

tk aie ble: pie Baba seer ~ delay the sentencing on grounds that a “sur-+,,”
‘amphor © pri i ” sai illeds.:~

tree across the street from Hays’ apart.” ‘Donald ooted oe cH fa ae paper. fe

. _, Police with a subpoena went to a Mobile >=
can’t promise there will be more indict-. County residence and a Gulf Shores motel in _

= ments or not. The case is going to be pur:....Search of the witness, whom they identified ;

_. Authorities said yesterday they wereiv«:
| unable to locate the woman." hag

“to show Klan strength

cemingham Post-Herald, Friday,

February 3, 1984

eee

iS

GEG

off

Mes

<

: 74.904

on March 21, 1981. 98

‘ . ee ; aay a

Lawyer: Mo ed to hanging -

t

e may be ti

MOBILE (AP) — A least six other people may have joined in a
conspiracy to murder a young black man whose beaten body was
hanged ina tree three years ago, according to a lawyer who filed a
$10 million suit against a Klan group in the slaying. wae Re

Morris Dees, an attorney in the Montgomery-based Southern Pov- §
erty Law Center, said Friday at least “six others that we know of”
may have participated in the conspiracy to kill Michael Donald, 19,

~ Ku Klux Klansman Henry Hays of Mobile was tried and sentenced
to death for the murder. A second Klansman has pleaded guilty to a
federal charge in the slaying. (gar ag : Sane “
~ Dees’ comment came in a hearing before U.S. Magistrate Patrick
Sims, who was laying the legal groundwork for trial of the lawsuit
_that was filed on behalf of Donald’s family and “‘all black citizens of
* Alabama.” The suit was filed against the United Klans of America,

i ‘Kmong ‘those named as defendants in the suit are Hays’ father,

“Bennie Jack Hays, a former KKK leader in Mobile County; and
“Robert Shelton of Tuscaloosa, the Imperial Wizard of the Unit

yew te ‘’

4,


ALABAMA BRIEFS
=e

Klansman loses federal
bid to alter death sentence

MOBILE — A Ku Klux
Klansman convicted in the 1981
beating and hanging of a black
teen-ager in Mobile lost a
federal bid for a new trial ora
change in his death sentence.

Henry Francis Hays, now 40,
awaits execution in state prison

for the March 20, 1981, slaying of [ ED G s r . rams y/ Oy NV 1,4 ££.

19-year-old Michael Donald,

whose body was hanged in a tree
in a vacant lot on a residential (? / (& (4
street. : LAL y, !

USS. District Judge Charles R.
Butler, in an order last week,
refused to alter the state’s death
sentence or grant a new trial.

Hays’ conviction and sentence
have already been upheld in
state courts. |

“Henry Hays committed one
of the most brutal and infamous
crimes in the history of this
state,” Butler wrote. “He faces
death not because the criminal
justice system in Alabama failed,
but because of his intentional
actions.” | )

Hays’ attorney, Rick Kerger
of Ohio, said he would appeal the
order to the 11th U.S. Circuit
Court of Appeals. :

In his federal appeal, Henry
Hays claimed his constitutional
rights had been violated ~~
because, among other things, the
indictment had been changed
before his trial. He also claimed
fellow Klansman James “Tiger”

Knowles had committed perjury.

more likely during the earlier
testimony at a plea bargain.

Jury resumes probe into Klan hanging

MOBILE (AP) — A federal grand jury resumed its investigation
Friday into the killing of a black teen-ager whose body was hanged
in a tree, a probe that already has led to the conviction of a Ku Klux

‘Klansman sentenced to death. —_’.

Last Dec. 10, Klansman Henry Hays was convicted of capital -
murder in the 1981 slaying of 19-year-old Michael Donald of Mobile. °

The Associated Press has learned that three other members of
Hays’ family were subpoenaed to testify before the grand jury
Friday. : ates : cee a

Among those called were Kayinond Hays, the defendant’s brother
who is not a Klansman; the defendant’s sister, Gail, and her hus-

band, Klansman Frank Cox. 7Us¢/7 Loews, At MES

HOM GOIGA, CGE La


KLANSMAN

from page 1A

Mr. Donald. .

Hays’ attorneys concede he has
few avenues of appeal that could
block his execution. The U.S. Su-
preme Court rejected his appeal in
March. The Alabama attorney gen-
eral’s office on April 2 asked the
state Supreme Court to set Hays’
date with the electric chair.

‘T¢ anybody deserves to die in
the electric chair, Henry Hays cer-
tainly does,” said former Assistant
U.S. Attorney Thomas Figures,
who led the federal grand jury
probe into the Donald slaying. “He
was probably the most vicious,
mean, unrepenting criminal that
I’ve ever come across.”

Mr. Donald’s brother, Stanley
Donald, 43, said he plans to witness
the execution, which is permitted
under a new state law.

He said their family has kept all
the newspaper clippings on the
case, and cherishes Michael’s
memory, particularly every spring,
a constant reminder of the day of
grief.

“Our children know what hap-
pened,” Stanley Donald said. “He
touches us from the grave.”

Hays, in a prison interview on
April 10, said he realizes time is
short for him. His fingers tremble
slightly. Words rush out, mostly
repeating what he’s said for years:
“Tt didn’t do it.” A jury ruled he
did.

“Pye had 13 years to deal with
knowing this eventually might
happen,” said Hays, describing his
approaching execution and the
maze of hatred that marooned him
in prison. Hays said people don’t
want to hear his claims of inno-
cence. “They want closure on
this.”

Testimony from a fellow KKK
member sealed his fate. In the
hours immediately after the kill-
ing, Hays’ own words also helped
convict him as witnesses quoted
him taking credit for the death —a
KKK badge of honor.

James “Tiger” Knowles, then 18,
testified that he and Hays picked
Mr. Donald at random and forced
Mr. Donald into a car, then took
him into nearby Baldwin County
and beat him with a tree limb be-
fore putting a noose around his
neck.

Mr. Donald’s body was hanged in
a vacant lot across the street from

| a house owned by Hays’ father,
| Bennie Jack Hays. The younger

Hays had been living in an apart-

| ment in the house.

His father, a one-time Missouri
moonshiner, was charged in the
murder, but he died before his
prosecution concluded.

Knowles was given a life sen-
tence in exchange for his testimo-
ny, and Hays’ lawyers say Knowles
is now in an undisclosed location
in the federal witness protection
program. —

Hays’ brother-in-law, truck driv-
er Frank Cox, is serving a 99-year
murder sentence in state prison
for providing the rope used in the
Donald hanging.

Hays said Knowles lied about
Hays being with him on the night
of the murder, working a plea bar-
gain to avoid a prison sentence in
an unrelated case.

“Tt was ambush, railroad, from
day one,” Hays said.

“A jury found him guilty beyond
a reasonable doubt. His case has
been subjected to microscopic ap-
peal scrutiny. Nothing could speak
more forcefully to his guilt,” said
Chris Galanos, the former county
prosecutor who handled part of the
Hays prosecution.

HAYS CASE
CHRONOLOGY

THE ASSOCIATED PRESS

» March 20, 1981: Mi-
chael Anthony Donald ab-
ducted about midnight in Mo-
bile, Ala.

« March 21, 1981: Don-
ald’s body found hanged in
tree

« Dec. 10, 1983: Henry
Francis Hays convicted of
capital murder, two months
later sentenced to death

» June, 1983: James “Ti-

er’ Knowles pleads guilty to

ederal charge of violating
Donald's civil rights and re-
ceives.a life sentence

« Feb. 12, 1987: A fed-
eral jury awards $7 million to
Donald’s mother in a civil suit
against the United Klans

= Feb. 5, 1988: A state
court judge rules a mistrial in
the murder trial of Hays’ fa-
ther, Bennie Jack Hays, 71,
who collapsed during trial. He
died before a second trial at-
tempt.

« May 18, 1989: Hays
brother-in-law Frank Cox Is
convicted of murder in state
court and sentenced to 99
years in prison

= March 17, 1997: U.S.
Supreme Court rejects Hays’
appeal

Hays’ arrest in 1983 didn’t come
until the FBI got involved. Within
days of the March 21, 1981, killing,
city police were led astray on sev-
eral theories, including a love-tri-
angle motive, a homosexual angle,
and drugs. None panned out. They
also arrested three white men,
amid widespread news coverage,
who later were cleared and re-
leased. :

State investigator Bob Eddy said
there was never any doubt in his
mind about Hays’ guilt. Eddy re-
called that there were police pho-
tos of the crime scene that proved
Hays was lying about where his
car was parked, for example.

Eddy said that Hays’ father also
threatened Hays’ wife, who had
corroborated some of Knowles’ tes-
timony.

“For him to say he was not with
Tiger is just ridiculous,” Eddy said
in a recent telephone interview.
Eddy said there were very few
things Knowles said that could not
be corroborated.

Eddy said Hays’ attorney, M.A.
“Bubba” Marsal, who is now de-
ceased, was an able defense coun-
sel.

Hays’ appeal has been waged by
Richard M. Kerger of Toledo, Ohio,
and Tony D. Graziano of Tampa,
Fla.

Mr. Kerger said they volunteered
for the assignment in 1987 when
approached by the NAACP Legal
Defense Fund, which opposes the
death penalty.

Hays blames a lot of his prob-
lems on a “domineering father,”
who was a leader in the UKA, one
of the nation’s oldest KKK organiz-
ations before its finances were left
in a shambles after the Donald kill-
ing.

The Southern Poverty Law Cen-
ter filed a suit on behalf of Don-
ald’s mother, Beulah Mae Donald.
A jury eventually returned a $7
million judgment in her favor. The
UKA’s property near Tuscaloosa
later was sold, and Mrs. Donald, a
mother of eight children, bought a
house with the only money eked
from the award.

’ Hays, who disavows any KKK
connections now, said his father
forced him into the Klan to settle a
family dispute.

“Phe deal was ior seveh yedis,
and seven days,” said Hays. At the
time, he said, he was living “under
the interstate” and working in a
parking lot downtown. “Me and
Dad was on the outs.”

He said his father’s KKK friends
complained about Henry’s “hip-
pie” appearance. “It didn’t make
him look very good. Part of the
agreement was that I join the Klan,
get my hair cut and straighten

up. \

Mr. Donald’s brother, Stanley,
said Hays can’t blame his father.
“He was a willing subject. It don’t
just go on his daddy,” Stanley Don-
ald said. He said Knowles also
should have gotten the death pen-
alty. “His butt should’ burn, too,”
he said.

According to the prosecution,
Mr. Donald was killed as a result of
Klan outrage over a jury that dead-
locked in the trial of a black ac-
cused of slaying a white police-
man. After the mistrial, at a Klan
meeting in Mobile, the plot was
hatched to take a black’s life, any
black’s life, prosecutors said.

‘I remember that, but you also
got to remember that was Tiger’s
theory,” Hays said.

He said he himself was not at
that KKK meeting, and he doubts
Knowles’ account, which was de-
tailed in chilling testimony in sev-
eral court appearances.

Hays said people thought
Knowles was a member of ‘‘our
unit” in Theodore, but he only as-
pired to the Klan. He said Knowles,
starting at age 14, “hung out” with
a small Klan group in Grand Bay
that had only about 10 members.

“The head office had an agenda
that the UKA didn’t associate with
the Invisible Empire, or Knights of
the Ku Klux Klan or James Ven-
able and the Stone Mountain
boys,” Hays said.

Recalling KKK expansion hopes
in 1981, Hays said: “We decided if
you want to have unity, you’ve got
to start working with these other
groups. If you have a march and
you're walking down the street,
and the most you can get is 10 or 15
robed klansmen, how in the world
is that supposed to show you're a
big organization?

“So, we started working with
these other groups. Our rallies and
stuff, when we put on a rally, or.a
cross-lighting, we’d have 25 to 40
robed Klansmen. We would have
public address systems, loudspeak-
ers, the whole nine yards, guest
speakers from other states. This is
what Tiger was drawn to.”

At the trial, Hays said his father
told him that he had paid $60,000
for defense lawyer Marsal to han-
dle his case. “I sat there like a
bump on a log and watched him
send me right down the river,”
Hays said. ’

Before his death, Mr. Marsal had
withdrawn from the Hays appeal.

Hays said he’s been writing
goodbye letters to friends and fami-
ly. He pulls from a paper folder a
page containing the Ten Com-
mandments written on a back-
ground of tiny squiggly red lines.

“T call this ‘Hays’ maze,’ ” he
said.

Hays said he was born and
raised a Roman Catholic in Mis-
souri, but in prison he has become
an Episcopalian. Hays said his
mother, Opal Hays, died in May
1985 from a heart attack in the
prison visiting room.

“From February 1984 until May
1985, she was here every Monday.
She never missed a visiting day,”
he said.

As for the approaching execu-
tion, he said, “I’m ready in my soul
and my spirit. ... I’m too much of a
coward or a man to take myself
out, so I will go through that. ... ’m
still a little numb about it.”

Be


_..irsday, June 12, 1997 Che Dallas Morning News

Execution
isn’t a sign
of progress

A lot is being made of the recent
execution of 42-year-old Henry
Francis Hays, a former Alabama
Klansman. The media have pointed
out that Mr. Hays is the first white
man to be executed for the murder
of an African-American in Ala-

in bama since 1913.
CLAUDE What a sad barometer on race
LEWIS relations in the South.
I Re ea cd Mr. Hays was convicted in the
| death of Michael Donald, 19, on the night of March 20,
| 1981. According to court records, he and a fellow Ku
Klux Klan member, James “Tiger” Knowles, cruised a
poor neighborhood in Mobile looking for some black,
any black, to kill. They saw the cowardly murder as
proof of the Klan’s power.
According to Mr. Knowles’ testimony, he and Mr.
Hays forced Mr. Donald into their car at gunpoint. They
| then beat him with tree branches, put a noose around
| his neck and choked him.

Mr. Knowles, who testified at Mr. Hays’ murder trial,

received a life sentence for violating Mr. Donald’s civil
rights. He told the court that Mr. Hays slashed the
teenager's throat three times to make sure he was dead
and hung his body high in a tree.

Upon hearing of Mr. Hays’ electrocution, some
throughout the country nodded approvingly — as if the

execution signaled some sort of racial progress or parity
in Alabama.

Hardly. What Alabama and the rest of the world need
at this hour in history is less death, not more. Even this
heinous crime doesn’t move me to support the death
penalty, which I consider to be barbaric, crue) and inef-
fective in stemming the tide of murder in America.

However, the reason for the wide interest in Mr.
Hays’ electrocution is clear.

Throughout Alabama history, many African-
Americans have gone to their final resting place for the
murder or rape of whites or, occasionally, for just being
“too uppity.”

Until Mr. Hays, very few whites had lost their lives
for the murder or rape of an African-American.

Several blacks, in the North as well as the South, sali-
vated at the news that the execution had been Carried
out. Many were convinced, right up to the moment that
Mr. Hays was strapped into the electric chair, that there
would be a last-minute reprieve by Alabama Gov. Fob
James.

However, appeals for clemency by Mr. Hays’ brother
and sister were unsuccessful. They blamed their late
father, Bennie Jack Hays, who once led the United Klans
in southern Alabama, for the crime.

The elder Mr. Hays had been charged with inciting
Mr. Donald’s murder, but a mistrial was declared after
he collapsed during the proceedings. He died before
being retried.

Some think Mr. Hays’ death was largely a result of the
changing politics of the South.

A black Mobile resident, Bertha Mae Cooper,
expressed the meaning she took from the-execution this
way: “I think it is an indication that equality of the races
finally has arrived in Alabama. Maybe things aren't
completely equal, but they sure are a lot better.”

Considering the long and cruel mistreatment of
blacks in Alabama and other states, it seems premature
to conclude from this one execution that blacks and
whites now are treated equally.

While it may be true that blacks and whites may be
judged on the facts of their cases more often than in the
past, without consideration of skin color, I would be
careful making assumptions about Alabama.

A call to the NAACP in Mobile put me in touch with
the NAACP’s answering machine — and reality. Its
recorded message?

“Due to our workload, if you have a complaint, please
put it in writing and request an appointment. Thank you
kindly.”

Not much to rejoice in there.

Much of the reaction to the Hays execution reminds
me of something Mahatma Gandhi once said: “An eye for
an eye leaves everybody blind.”

Claude Lewis writes for the Philadelphia Inquirer. |

Klan

member

t
2

»

2
>?
b)

executed.
in Ala.

= Boston GLabe
Clemency denied.
in racial slay!

‘. J Une G, T2

8 ASSOCIATED PRESS |

*’ ATMORE, Ala. - A former Ku
‘Klux Klansman, whose killing of a
‘black teen-ager ultimately bankrupt-
ed the KKK faction suspected of or-_
dering the crime, was executed in |
the state’s electric chair early today.
-* Henry Francis Hays, 42, was
ronounced dead at 12:18 a.m. in
Alabama’s first execution for a
white-on-black crime since 1913.
*« Hays was convicted in the 1981
slaying of Michael Donald, a 19-year-
‘old black man who was abducted at
‘random from a Mobile street by two
‘men, then beaten, cut and strangled.
‘His body was strung upinatree. |

Governor Fob James had refused |
‘to grant Hays clemency.

Prosecutors said the slaying was
ordered by Klan leaders, including
Hays’ father, “to show Klan strength
in Alabama.”

“. Instead of emboldening racists,
‘the slaying wound up financially de-
stroying the United Klans of Amer-
ica in 1987. The Klan was hit with a
_$7 million wrongful-death verdict in
-a case brought by Donald’s mother.

~~ ‘The Klan had nowhere near that
amount in assets. It had to sign over |
its Tuscaloosa building to Donald’s|
mother, Beulah Mae Donald, who

sold it for about $52,000 and bought

a house. She has since died.

Prosecutors said the Klan mem-
bers decided to kill a black after a
jury deadlocked in the trial of a
black man charged with killing a!
white policeman.

James Knowles, then 18, testified
that he and Hays picked Donald at
random and forced him: into a car,
then beat him with a tree limb, cut
his throat and tightened a noose
around his neck. Knowles was given
‘a life sentence in exchange for his
testimony.

Hays said he unwillingly joined
the United Klans to satisfy his fa-
ther, a leader in the Klan’s southern
Alabama operations. Hays accused
Knowles of framing him.


Tide

one win
away from
title game

SPORTS / 1C

Conference
focuses on
working
women

BUSINESS / 7C }

s ‘Alabama’

F announces
this is last
June Jam

STATE / 1B
FRIDAY

MONTGOMERY |

Disaster
movies
attract
viewers

LIFE / 1D

-

we Weather / 10A

JUNE 6, 1997

MONTGOMERY, ALABAMA

STATE EDITION 50¢

» Alabama State Harley-David-
son Rally: 6 p.m., Montgomery
Motorsports Park, 2600 North Belt
Drive. Top fuel bikes, jet show, “hogs,”

Elvis impersonator. $12. 260-9660.
p> Jam session: 6:30 p.m., Hank
Williams Sr. Park, Georgiana. $5.
(See Saturday.) (334) 376-2396.

ERE

Ex-Klansman’s execution goes forward

By Alvin Benn
MONTGOMERY ADVERTISER

ATMORE — State prison offi-
cials prepared Henry Hays for exe-
cution late Thursday night — 16
years after he and three other Ku
Klux Klansmen murdered a black
teen-ager in Mobile.

Final details for the execution of
Hays, 42, were put in place after
Gov. Fob. James rejected last-min-
ute pleas for clemency.

Hays was sentenced to death in
1983 for taking part in the 1981
Klan-related murder of Michael
Donald, who was abducted at
random from a Mobile street, beat-
en to death and hanged from a tree
on a vacant lot.

Barring a change of heart by
James as the midnight hour drew
near, Hays would be the first white
person executed in Alabama for
killing a black since 1913, said
Watt Espy of the Capital Punish-

ment Research Project in Head-
land.

Hays’ father, Bennie Jack Hays,
was charged as an accomplice, but
he died before he could be tried.

Two others also were convicted,
but neither received the death pen-
alty.

James “Tiger” Knowles was con-
victed of a civil rights violation
and is serving a life term in federal
prison after testifying against
Hays.

Hays’ brother-in-law, Frank Cox,
is serving a life sentence in an Ala-
bama prison after being convicted
of the same crime. He provided the
rope used to hang Donald.

Supporters of the condemned
man tried without success to en-
courage the governor to commute
Hays’ sentence, pointing out that
the trial judge rejected a jury rec-
ommendation that Hays be sen-
tenced to life without parole.

Trial judges in Alabama have

the authority to overturn jury rec-
ommendations in capital murder
cases, and many have done as Mo-
bile County Circuit Judge Braxton
Kittrell did 13 years ago.

James, who is vacationing this
week in Canada, rejected last-min-
ute appeals for clemency and,
through a statement, denied the re-
quest:

“After

thorough consideration

Please turn to KLANSMAN, 2A

continues to reverberate

By Garry Mitchell
ASSOCIATED PRESS

MOBILE — For 14 years, former
Ku Klux Klansman Henry Francis
Hays denied any involvement in
the 1981 killing of a black teen-
ager.

Hays died in Alabama’s electric
chair June 6. An emotional bomb-
Shell — an unexpected ‘‘confes-
sion” — hit on his last night alive
at Holman Prison.

A black preacher claimed that
Hays had confessed to him “in de-
tail” to the slaying of Michael Don-
ald, 19, whose beaten and slashed
body was hanged in a tree March
21, 1981.

That announcement from the
Rev. Robert “Brother Bob” Smith,
a self-described street preacher
with a bachelor’s degree from Dil-
lard University, stunned Hays’
family, and even caught Donald’s
survivors off-guard.

In less than an hour, Smith ap-
parently had succeeded in getting
information that years of FBI in-
terrogation, trials and intimate
family discussions had been un-
able to extract from Hays.

“I was on a soul-saving mis-
sion,” Smith, a former high school
math teacher, said Monday in an
hour-long interview, hoping to
quash doubts about the confession.

With Hays dead, however, no one
can corroborate the claim.

But there are undisputed facts:
Smith and the prison chaplain es-
corted Hays, 42, from the holding
cell to the electric chair. And both
of them witnessed his final breath.

Smith, president of the Mobile
chapter of the NAACP, said he had
interviewed Hays on June 4, at
which time Hays confessed. Smith
requested the interview, according
to Holman Warden Charlie Jones.

The Rev. Rob-
ert Smith
speaks Mon-
day in Mobile
about his June
4 meeting with
condemned
killer Henry
Hays, during
which Smith
claims Hays
confessed to
the 1981 slay-
ing of a black
Mobile teen.

ASSOCIATED PRESS

“He confessed as though it was
so rehearsed, so entrenched in his
mind,” said Smith, refusing to di-
vulge the details. “He gave me the

story in detail. I don’t think [ll .

ever give details of what he said.”

Until Smith’s unexpected arriv-
al, Chuck Blanton, a Lafayette con-
tractor, had been Hays’ “spiritual
adviser.” Blanton doesn’t believe
Smith’s account.

“I can’t fathom how a man who
has maintained his innocence and
based so much of his very. persona
on that innocence, could take a
‘bath in confession’ to a_ total
stranger, then show absolutely no
indication of it all the next day,
surrounded by people who knew
and loved him,” Blanton said.

Learning of the Smith meeting,
Blanton, among Hays’ final. visi-
tors, said Hays told him that he

only confessed to being a Klans-

man and a sinner.

It seemed natural to Smith that
Hays would give a death-bed con-
fession to a black cleric, because
the victim was black.

“I was the right person at the
right time for Henry Francis
Hays,” Smith said.

Smith, 68, has grown ‘Weary of

doubters. He doesn’t pastor
churches, preferring to reach souls
on “the streets, in the massage par-
lors, places with church members
don’t go.”

Smith said his prison ministry is
separate from his NAACP post,
which he has held since 1995.

He has been under fire from
Blanton and others for disclosing a
“deathbed confession,” apparently
given in religious confidence.

Smith said he returned to Hol-
man Prison on June 6 and mingled
with Hays’ final visitors to let
them know he had confessed.

He said Warden Jones. had also
phoned him on June 5 to advise
him that Hays wanted him in the
witness room as his “spiritual ad-
viser,” replacing Blanton. The in-
mate can have two people plus a
minister as execution witnesses.

“I was stunned when he asked
me if I would go to the chair with
him,” Smith said.

Smith said he later attended
Hays’ funeral because the con-
demned inmate also had asked him
to be there.

“He confessed his part in the
crime. He had no hesitation about
it,” said Smith.

: we ue

ancer survivor

/WELTISER Madlouny AL bf2f7


S/ALABAMA le—T/-/ ¢ y a THE DOTHAN EAGLE 3-A

Condemned man’s tears before death
meant little, victim’s brother Says

By Garry Mitchell Smith, alsoa px Ray Hays, and the victim’s two rela-
Associated Press Writer witness at the tives, and mouthed, “I love you.”
12:10 a.m. exe- His face then was concealed

ATMORE — Former Ku Klux ution at Hol- behind a black veil. His body jerked
Klansman Henry Francis Hays’ man Prison in Rao when the 2,100 volts hit, and he was
tears — only minutes before his south Alabama, i : pronounced dead at 12:18 a.m. CDT.
death in Alabama’s electric chair — said Hays ky It was Alabama’s first execution for
were not shed for the lynch-style arranged their a white-on-black crime in 84 years.
killing of a black teen-ager, said the meeting. Smith “What I just witnessed was a sad
victim's brother who witnessed Fri- aid the call sight to see a young man let his life

day’s execution, _, Surprisedhim. | ° : go like that,” Stanley Donald told
A tear was in his eye, but it’s Smith Henry Hays reporters later. He said the execu-

probably because he knows he’s refysed to tion brought him “no satisfaction.”

about to die. These people don’t divulge the conversation, citing his “I hope no one else tries to do

have no feeling,” said Stanley Don- role as a religious counselor. But what this man and his cohorts did to
ald, whose 19-year-old brother was Smith Said they had an “uplifting, my brother — in the manner they

slain on March 21, 1981. soul-searching talk that convinced did it. It’s Sad, very sad,” said Don-
Donald said watching the execu- me that Hays’ heart was in the right _ ald, who watched the execution with

tion hurt, but not as much as seeing place.” brother-in-law Dennis Perry of

his brother’s casket lowered into the Outside the prison, Donald Mobile.

ground. Blocker, a representative of the

Michael Donald was kidnapped Knollwood Assembly of God in
at gunpoint at night froma Mobile Mobile, said Hays on Monday had
street and taken into the woods. The again professed his innocence and
next morning, his beaten, cut and asked God for forgiveness at the
strangled body dangled from a Tope prison ministry meeting.

_ ina tree in Hays’ neighborhood. “He’s asked God to forgive him

Two Klan cohorts are serving life for any sin that’s been in his life,”
sentences in the Donald slaying — Blocker said. “His biggest fear in life
one in state prison, the other in fed- was not of death or anything other
eral witness protection. A third, than being alone. He’s taken the
Hays’ father, Bennie Jack Hays, men on death row to become his
died before his murder trial at age family.”

76. Strapped in the electric chair, his

Prosecutors said the slaying was — feet rocking, Hays gave a thumbs up
ordered by Klan leaders, including sign, and nodded to those he recog-
Hays’ father, “to show Klan strength nized in the witness chamber, his
in Alabama.” eyes filled with tears.

After 13 years on death row, He then turned to his brother,
Hays, 42, never admitted his guilt,
blaming the Klan and his father for
his doom. But he apparently unbur-

‘ dened himself Wednesday in a ses-
sion with a black minister, the Rev.
Bob Smith, who is president of the
Mobile chapter of the NAACP.

scl
_

2A Saturday, June 7, 1997

BROTHER

from page 1A

layed a few minutes to allow for
last-minute details — such as read-
ing of the death warrant.

Hays’ execution was the 16th in
Alabama since capital punishment
was reinstituted in 1981. It also
was the first time in 84 years that a
white inmate was put to death for
murdering a black person.

Bennie Jack Hays, the father of
Henry Hays, died before he could
be tried for the same murder while
Hays’ brother-in-law, Frank Cox,
was sentenced to life for being an
accomplice by providing the rope
used to hang Donald.

James “Tiger” Knowles, re-
ceived a life sentence in exchange
for testifying against Hays and is
being held under the federal wit-
ness protection program. He was
found guilty of a civil rights viola-
tion in the Donald slaying.

Griswold said relatives of mur-
' der victims have been allowed to
witness the last three executions
under a new policy instituted by
the Department of Corrections.

When Hays was led into the
» death chamber shortly before mid-
night, reporters who witnessed the

event saw the condemned man.

form the words “I love you” as he

looked at Donald and some others -:

who were watching.
Michael Wilson, a reporter for

“

CONTINUED FROM 1A

Autopsy perfo

STAFF REPORT

The Alabama Department of
Forensic Sciences’ Mobile office
performed an autopsy on Henry
Hays’ body Friday morning
after the U.S. District Court in
Mobile denied a motion to block
the procedure. ’

Hays was executed early Fri-
day morning at Holman Correc-
tonal Facility in Atmore. His at-
torneys filed a motion Thursday
in federal court to block the pro-
cedure.

Richard Kerger, a Toledo,
Ohio, lawyer representing Hays,

rmed on Hays

said Hays thought the autopsy
would be unnecessary and did
not want his body disfigured.

Escambia County District At-
torney Mike Godwin, who or-
ders autopsies after all execu-
tions, said the court denied
Hays’ motion because he “failed
to show any injury, loss or dam-
age resulting from the autopsy.”

Godwin said autopsies are
necessary after executions to
ensure that the condemned pris-
oner was not mistreated before
the execution and that the pro-
cedure was carried out accord-
ing to the law.

the Mobile Press-Register, said
Hays also gave a “thumbs up” to
the witnesses before the .button
was pushed.

One of the witnesses was Bob
Smith, described as an official with
the NAACP in Mobile. Smith had
developed a cordial relationship
with Hays in the period before his
execution.

Hays’ body tensed in the chair
and then relaxed seconds after the
initial burst of electricity traveled
downward from a metal skullcap
attached to his head, which had
been shaved prior to his entry into
the execution chamber.

NERS IPR CANE RRR

Department of Corrections
spokesman Tom Gilkeson said no
execution date has been set for the
next condemned killer. He said one
of 24 inmates with longer stays on
death row than Hays likely will be
the next to die.

Before leaving the news confer-
ence, Stanley Donald was asked
how he thought his brother might
have reacted if he could view the
execution of a man who continued
to deny any involvement in the
murder.

“I think he’d have done a flip,”
said Donald, who described Hays
as a man “who sold his soul to the
devil.”

aR ee rn


HARKINS, James, white, hanged at Montgomery, Alabama, on Jan. 3, 182.

"A murder of peculiar atrocity was committed in this city on Tuesday night of last
week on the body of a man by the name of Eugene Bougely, the keeper of a small gro=
cery near the outskirts of the city. Two individuals, by name Hobbie and Whittemore,
were next morning arrested and held to bail in sums of $),000 each for their appear-
ance at the next term of the Circuit Court, as accessories, The assassin, a des-
perate ruffian, by name Harkins, was taken the next night by a party of spirited
citizens (volunteers) and committed for trial at the next term of our Circuit

Court. The evidence, both of direct and circumstantial, leaves not a shade of

doubt as to his guilt, Although homicides, varying in atrocity, are by no means
unusual in our community, yet there were some circumstances attending this one
which occasioned more than usual excitement among our citizens. It appeared, on
examination, that Bougely was called to his door and deliberately shot, The
apparant want of motive on the part of the assassin, and the evident coolness and
premeditation of the whole affair have given rise to many suppositions in relation
to it, Something will probably be developed on the trial of harkins, which will
throw light on the causes of this transaction." ALABAMA JOURNAL, Montgomery,

Alae 9 915-181 (2=6. )

"Yesterday the jury in the case of Harkins for the mrder of Bougley, after being
out for about ten minutes, returned with a verdict of guilty against the accused,"
ALABAMA JOURNAL, Mont,, 12-1-18)1 (2-5)

"James Harkins, convicted at the last term of the murder of E, Boughly, suffered
the extreme penalty of the law in accorrdance with his sentence on Monday last.

He walked firmly from the jail to the place of execution, and we learn died in an
excellent frame of mind, acknowledging the gjsticeof his sentence, and trusting
for pardon to that power which alone is able to forgive offences,the most heinous.
We learn also fhat from the scaffold he impressively warned the immense concourse
that witnessed his execution against the evil courses which had brought him to

that ignominous situation, He left a confession and detailed account of the
circumstances attending the commission of the crime which he requested should be
published in a pamphlet form, and the avails of the sale applied to some charitable

purpose, The policy of public execttions may well be questioned," Ad, 1-5=18)2 (2=2)

‘sawee *SNTWUVH

HARKINS, James, white, hanged Montgomery, Montgomery Co., January 3, 1842.

“Jan. 3, 1842-James Harkins was hung near the southwest corner of the ‘Capitol’
Square, for the murder of Edmund Bougley on the 7th of September, 1841. He protested his
innoncence on the gallows.”-A Brief History of Montgomery, by M. P. Blue, Esq.; Republished
1959, Montgomery: The Society of Pioneers of Montgomery, Inc., page 41

“Also in 1841, James Harkins ruthlessly murdered a man named William Bougley. The
presiding officer at Harkins’ trial, Circuit Judge Martin, remarked that ‘seldom...has a case so
wanton, so reckless and wicked...been exhibeted in the halls of justice. It seems ‘incredible,’
Martin lectured Harkins, ‘that a motive so destitute of human feeling, so fraught with malignity,
and so regarless of consequences in this life and in eternity, could be found to exist in the human
heart.’ Not surprisingly, Judge Martin sentenced Harkins to be hung until he was ‘dead, dead.’

“Throughout his trial Harkins ‘exhibeted the recklessness of the hardened ruffin,’ but he
was a changed man by the time of his public hanging in January, 1842. From the scaffold, he
warned the ‘immense concourse that witnessed his execution’ to avoid the evil ways that had led
to him to his doom. Furthermore he left a confession and a detailed accout of his crime to be
published in ‘pamphlet form,’ the profits from the sale of this pamphlet Harkins wanted ‘applied
to some charitable purpose.’”-” Violence in Alabama: A study of Late Ante-Bellum Montgomery,”
by Arthur F. Howington; Alabama Review, July, 1974, page 220 (Alabama Journal,
Montgomery, AL, 12/8/1841 & 1/5/1842).

Rr ae, ame ; :
HARDY, Cyarence, black, 2, elec.,Ala., 5-1-19))2,

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HARRELL, Freeman, black, 21, hanged Selma, Alabama 6/9/1910.

Ala.)

The insistence of the appellant is that, not-
withstanding section 4583, the parties are still
at liberty to contract that the policy shall be
governed by the laws of another state; and,
second, that section 4572 is violative of sec-
tion 1, art. 14, of the Constitution of the
United States, which prohibits the passage of
“any law which shall abridge the privileges
or immunities of citizens,” etc. The author-
ities cited by appellant are to the point that,
aS a general proposition, citizens may make
contracts, providing that they shall be goy-
erned by the laws of another state; but a
reading of the entire chapter containing the
sections cited shows that the intention of the
Legislature was that all contracts made on
Applications signed in the state should be gov-
erned by its provisions, and that the statute
Should override any provision in the contract
contrary thereto.

In a case in which a statute required the
insurer, by its agent, to examine the prop-
erty and fix its value before issuing a fire
policy, and made it liable for the entire
amount of the policy, while the policy pro-
vided for the usual way of fixing the actual
cash value of the property at the time of the
fire, ete., and for arbitration, the court held
that the provisions of the contract contrary
to the statute were invalid, and, citing a num-
ber of cases, and among them a strong opin-
ion by Judge Brewer, late of the Supreme
Court of the United States, held to the doc-
trine that these statutes are made for the
express purpose of preventing the operation
of provisions in the contract of insurance,
which are often printed in small type, and
that to give them such an interpretation as
to allow the parties to waive their provisions
In the contract of insurance would destroy
the very object and purpose of the statute.
The statute “molds the obligation of the con-
tract into conformity with its provisions.”
Queen Ins. Co. v. Leslie, 47 Ohio St. 409, 24
N. . 1072, 9 L. R.A. 45.

Where the statute of Missouri provided a
rule of commutation different from that ex-
pressed in the contract, the Supreme Court
of the United States said: “The manifest ob-
ject of this Statute, as of many statutes regu-
lating the form of policies of insurance,
* * * is to prevent insurance companies
from inserting in their policies conditions of
forfeiture or restriction, except so far as the
statute permits. The statute is not directory
only, or subject to be set aside by the com-
pany, with the consent of the assured; but
It Is mandatory, and controls the nature and
terms of the contract into which the company
may induce the assured to enter.” Equitable
Life Society v. Clements, 140 U. S. 226, 233,
11 Sup. Ct. 822, 825, 85 L. Ed. 497.

Judge Taft, in construing a similar statute
of Pennsylvania, said: “This is one of a class
of statutes passed in many states to relieve
acainst the hardships arising from the'strict

HARRELL vy. STATE. 343

enforcement of the common Jaw of warran-
ties, in insurance policies, concerning matters
having no real or proximate relation to the
risk assumed by the insurer. By the aid of
such warranties and the innocent mistakes of
the insured, it often happened that the insur-
er was able to escape liability on a ground
having no real merit, and of the purest tech-
nicality. That such Statutes are remedial in
their nature, and are quite within the police
power of the Legislature, is no longer a de-
batable question.” Penn. Mut. L, Ins. Co. v.
Mechanics’ S. B. & Tr. Co., 72 Fed. 418, 19
C. C. A. 286, 38 L. R. A. 33.

The case of Kelly v. Life Ins. Clearing Co.,
113 Ala. 453, 21 South. 361, was decided short-
ly before the general Statutes readjusting the
insurance laws of the state, in which these
Sections occur, and they were doubtless adopt-
ed to meet that case. We hold that the sec-
tion in question is not violative of the Con-
stitution of the United States, and that the
provisions of the contract are governed by
the terms of the statute.

In addition to what has been said, the pol-
icy itself provides that “all statements made
by the insured shall, in the absence of fraud,
be deemed representations, and not warran-
ties, and no such statement shall avoid this
policy, unless it is contained in the applica-
tion therefor.” This clause is somewhat am-
biguous in its meaning, and we have thought
it best to dispose of the question on the law,
as above announced.

What has been said disposes of the ques-
tions raised on the pleadings. The matters
alleged in the pleas to which demurrers. were
sustained were reasserted in pleas subsequent-
ly filed, and which were allowed to stand, so
that, if there was any error as to either of
them, it was error without injury. The de-
fendant had the benefit of evidence on all of
the matters alleged, and the court, sitting as
a jury, passed upon the facts.

We find no error in the record, and the
judgment of the court is affirmed.

Affirmed.

DOWDELL, C. J., and MeCLELLAN and
MAYFIELD, JJ., concur.

—
(166 Ala. 14)

HARRELL v. STATS.
(Supreme Court of Alabama. April 21, 1910.)

1. IlomicipE (§ 164*)—MurpER—INTOXICATED
CONDITION OF DECEASED—EVIDENCE of—
ADMISSIBILITY.

In a prosecution for murder, where there
was as yet no evidence of self-defense, the the-
ory developed being the accidental discharge of
a pistol in a seuflle for its possession, a question
whether about half an hour before the shooting
deceased showed any evidence of imbibing of
spirituous liquors, was properly rejected, since
in the then state of the evidence whether or
not deceased was intoxicated was immaterial.

{[Ed. Note—For other cases, see Homicide,

Dec. Dig. § 164.*]

*For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

erlgaei

up
te


Ala.) EXCELSIOR STEAM LAUNDRY CO. v. LOMAX. ; 347

We discover no error in the record, and
hence the judgment must be affirmed.
Affirmed.

DOWDELL, ©. J., and SIMPSON and
SAYRHE, JJ., concur.

The date for the execution of the sentence
of death having passed, Thursday, the 9th
day of June, 1910, is fixed and set as the
day and date on which the sentence of the
law shall be executed.

(166 Ala. 612)
EXCELSIOR STEAM LAUNDRY CO. v.
LOMAX.

(Supreme Court of Alabama. April 14, 1910.)

1. MunicipAL Corporations (§ 703*) — LEav-
ING TEAM IN StREET—VIOLATION OF OR-
DINANCE — ‘‘WirnouT ANy PERSON IN
CHARGE.’’

Where a laundry wagon driver left his
team standing at the curb unattended while be
went into the second story of a building, 40 to
50 yards away and 30 fect from the sidewalk, to
deliver some articles from the laundry, the team
was left standing “without any person in
charge,” within the meaning of an ordinance
punishing such neglect, and the occasion was
not within an exception when the vehicle is be-
ing loaded and unloaded, which exception is
not to be extended so as to include more than
such temporary abandonment of the reins as is
reasonably incident to loading and unloading by
the driver.

{Ed. Note.—For other cases, see Municipal

Corporations, Dee. Dig. § 703.*]

2. MUNICIPAL CorporaTIONsS (§ 706*)—LEAv-
ING TEAM IN STREET—NEGLIGENCE—QUES-
TION FOR JURY.

Negligence in leaving a team unattended in
the street was a question for the jury, when
there was some evidence that the driver took
some precaution in the way of securing the
horses before he went into a house.

[Iad. Note—I*or other cases, see Municipal

Corporations, Dec. Dig. § 706.*]

3. Evipence (§ 32*)—Jupici1aAL NoTIcE—Mu-
NICIPAL ORDINANCES.

Courts of this state do not take judicial
notice of municipal ordinances, though residents
within a municipality must take notice of its
ordinances, which have the force of laws within
the limits of the corporation, and‘so, where an
ordinance is offered in evidence, the court can-
not assume to know the date on which it became
effective as law, where not shown.

{[Ed. Note.—For other cases, see Evidence,
Cent. Dig. § 42; Dec. Dig. § 32.*]

4, APPEAL AND Forror (§ 663*)—BILt or Ex-
CEPTIONS — STATEMENT AS TO HWVIDENCE —
CoNCLUSIVENESS.

The bill of exceptions stating that it con-
tains all the evidence, the Supreme Court can-
not deal with it on any contrary hypothesis.

[Id. Note.—For other cases, see Appeal and

Error, Cent. Dig. §§ 2853-2855; Dee. Dig.

663.*]

6. MuNiIcIrPAL CorPoRATIONS (§ 706*)—LEAV-
ING TEAM IN StREET—PROXIMATE CAUSE OF
INTURY—QUESTION FOR JURY.

The proximate cause of injury claimed to
be due to defendant’s driver leaving a team un-
attended in the street was for the jury.

[Ed. Note—For other cases, see Municipal

Corporstiens, Dee. Dig. § 706.*]

Appeal from City Court of Birmingham;
Charles A. Senn, Judge.

Action by Carrie Lomax against the Excel-
sior Steam Laundry Company. From judg-
ment for plaintiff, defendant appeals. Re-
versed.

Tillman, Bradley & Morrow and L. C.
Leadbeater, for appellant. Bowman, Harsh
& Beddow, for appellee.

SAYRE, J. An ordinance of the city of
Birmingham reads thus: ‘Section 875. Leav-
ing Horse Unattendedi—Any person whe
leaves any horse, mule or team standing at-
tached to any vehicle in the streets without
any person being in charge of said horse,
mule or team, except when being loaded ang
unloaded, must, on conviction, be punished,”
ete. The driver in charge of defendant's
laundry wagon had left his team standing at
the curb, and unattended, while he went into
the second story of a building, 40 to 50 yards
away and 30 feet from the sidewalk, to de-
liver some articles from the laundry. There
can be no doubt that the team was thus left
standing without any person in charge with-
in the meaning of the ordinance. Nor did
the occasion fall within the spirit and rea-
sonable interpretation of so much of the ordi-
nance as provides an exception when the
vehicle is being loaded and unloaded. The
danger of leaving teams standing in streets
without any one in charge, and the provi-
dence of the ordinance, are obvious, and the
exception is not to be extended so as to in-
clude more than such temporary abandon-
ment of the reins as is reasonably incident
to the loading and unloading vehicles by the
driver. Without going beyond the exigency
of the case presented by the facts shown in
the record, we state our opinion that the
driver was not, within the meaning of the
ordinance, loading or unloading the defend-
ant’s vehicle when he went into the house
under the circumstances testified to by him.

There was evidence which tended to show
that the driver had taken some precaution in
the way of securing the horse before he
went into the house. Whether, apart from
his alleged violation of the ordinance, he was
guilty of negligence as charged in the first
count, was, therefore, a question for the
jury; and it follows that, in giving the gen-
eral affirmative charge for the plaintiff, the
trial court assumed that the ordinance al-
leged in the third count of the complaint
was a valid ordinance in force at the time
of the injury complained of. The courts of
this state do not take judicial cognizance of
municipal ordinances. Case v. Mobile, 30
Ala, 538; Furhman v. Huntsville, 54 Ala.
263; North Birmingham Ry. v. Calderwood,
89 Ala. 247, T South. 360, 18 Am. St. Rep.
105. This, although the residents within a
municipality must take notice of its ordi-

*For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes


o

345:

3. Witnesses (§ 277*)—Cross-IXAMINATION.

In a prosecution for murder, where the evi-
dence tended to show accused’s flight soon aft-
er the tragedy, it. was not error to allow ques-
tions asked accused on cross-examination, which
sought explanation of the course of his flight,
and the circumstances attending it down to his
arrest in another state.

[Ed. Note.—For other cases, see Witnesses,
Cent. Dig. §§ 925, 979-984; Dec. Dig. § 277.*]

3. CrrminaL Law (§ 759*)—TRIAL—INSTRUC-
TIONS.

In a prosecution for murder, a. requested
charge that if there are two constructions which
may be put upon any point in the evidence, one
favorable to defendant and the other unfavora-
ble, you must follow the construction favorable
to him, was properly refused, as it invaded the
province of the jury.

[Ed. Note.—For other cases, see Criminal
Law, Cent. Dig. §§ 1737, 1738, 1790-1793; Dec.
Dig. § 759.*]

4, Homicipe (§ 286*)—MurpER—TRIAL — IN-
STRUCTIONS.

In a prosecution for murder, a requested
charge that if the jury believed that defendant
entertained feelings of affection for deceased,
and these feelings still existed up to and after
the crime, they should then have a reasonable
doubt as to the existence of malice, etc., was
properly refused, since it predicated an acquittal
upon feelings of affection entertained, at the
time of the shooting, by defendant for deceased,
and murder in the extreme degree may be com-
mitted notwithstanding such affection, which
may, upon occasion, inspire the murderous act
as an expression of jealousy.

[Ed. Note.—For other cases, see Homicide,
Cent. Dig. §§ 588-590; Dec. Dig. § 286.*]

Appeal from Circuit Court, Dallas County ;
B. M. Miller, Judge. /

Freeman Harrell was convicted of murder
in the first degree, and he appeals. Affirmed.

The facts are sufficiently stated in the
opinion of the court. The following charges
were refused to the defendant: ‘(1) The
court charges you, gentlemen of the jury,
that if there are two constructions which
may be placed upon any point in the evi-
dence, one favorable to the defendant and
the other unfavorable, you must follow the
construction favorable to him. (2) The court
charges you, gentlemen of the jury, that if
you believe from the evidence in this case
that the defendant, Freeman Harrell, enter-
tained feelings of affection for Nancy Too-
dies, and that these feelings still existed up
to and after the crime of the shooting, you
should then have a reasonable doubt as to
the existence of malice; and if such reason-
able doubt exists, you cannot find the defend-
ant guilty of murder.”

Samuel F. Hobbs, for appellant. Alexan-
der M. Garber, Atty. Gen., for the State.

McCLELLAN, J. The defendant is con-
demned to die for the murder of a woman,
Nancy Toodles. The evidence discloses the
prosecution’s theory to have been that de-
fendant, inspired by jealousy, shot deceased

52 SOUTHERN REPORTER.

(Ala.

without semblance of legal excuse or justifi-
cation. The defense was that in a scuffle
or tussle over a revolver the weapon was
discharged, resulting in the woman’s death.
During the examination in chief of Hatcher,
a witness offered by the defendant, this
question was propounded: “Describe her
condition at that time. Did she show any
evidence of having imbibed of any spirituous
liquors?’ The state objecting to the ques-
tion, the court elicited from witness that the
occasion to which the question related was
about half an hour before the woman was
shot. The court sustained the objection.
The status of fact and circumstance before
the jury at the time the quoted question was
propounded was only that we have indicated
as prosecution’s theory. There was no evi-
dence of self-defense in the case at that time,
if indeed, there was at later stages. The
court was not required to anticipate that
there would be such evidence or such de-
fense. In the then state of the evidence, in-
toxication vel non of the deceased was whol-
ly immaterial, and the court properly reject-
ed the question. Askew v. State, 94 Ala. 4,
8, 10 South. 657, 33 Am. St. Rep. 83; Gre-
gory v. State, 140 Ala. 16, 27, 87 South. 259;
Nichols v. Winfrey, 90 Mo. 408, 408, 2 S. W.
805. The legitimate office of such testimony
is to reflect light upon the “defensive” act
of the accused. If his act be not legally
defensive, but aggressive, it is obvious that
the condition of the assailed, as regards in-
toxication, is without the issue of guilt vel
non; for the killing of one steeped in in-
toxicants cannot be justified or palliated on
account thereof,

The exceptions taken to the allowance of
questions propounded to defendant on the
cross-examination of bim are without merit.
The evidence tended to show his flight soon
after the tragedy. These questions on the
cross sought and elicited explanation of
the course of his flight, and the circumstan-
ces attending it, even down to the occasion
of his arrest in another state. There was
no error in allowing the questions propound-
ed. Thomas v. State, 100 Ala. 53, 14 South.
621; Franklin vy. State, 145 Ala. 669, 39
South. 979.

The first instruction refused to defendant
was faulty in the particular that it invaded
the province of the jury. TFonville’s Case,
91 Ala. 39, 8 South. 688; Smith’s Case, 88
Ala, 23, 7 South. 103.

The other instruction was palpably bad.
It predicated an acquittal of murder upon
feelings of affection entertained, at the time
of the shooting, by defendant for deceased.
Murder, in the extreme degree, may be com-
mitted notwithstanding the existence of such
affection, and that it does exist may, upon
occasion, inspire the murderous act as an
expression of a jealousy grounded in an ex-
treme affection.

*For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes


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HARRIS, Lee, and MITCHELL, Abe, blacks, hanged Birmingham, Ala, 6-7-1895.

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proposition;* but land complications,” and rheumy inconvenienc-
es lumped together as “lagrippe” arose to bedevil construction.
That notwithstanding, as the tracks slowly inched their way to-
ward town, predictions were freely made that Brewton....will
shortly become a general wholesale distributing and manufactur-
ing point.’. One immediate benefit did accrue, at any rate, when
Elisha Downing and his partners persuaded the M. & G. to run a
spur track into the Cedar Creek lands, thus relieving that lumber
company of the shipping nuisance which hitherto had arisen at
every seasonal fall of the waters of the Coneeuh.*

In December, 1892, announcement was made that the pre-
viously unused lumber scraps would be tured to profit, with the
arrival of machinery “for the manufacture of crates, boxes, and
novelties.”* Sowell, of the Pine-Belt News, added his own sugges-
tion that a good local market wds awaiting an ice plant.” Others,
in the meanwhile, were growing impatient for the advent of a
long-discussed canning factory; and, as no outside capital seemed
interested, the lumber nobility undertook the construction of
such an enterprise themselves. The result was the founding of
the Brewton Canning Company in early 1895°; but the initial di-
rection of the foetal industry was mismanaged in being given a
too-wide stockholding base without placing managerial respon-
sibility in competent hands. Organizational meetings, conse-
quently, were so slimly attended that occasionally a working
quorum was not present,” and it was only by the gradual arro-
gation of more power to themselves that the barons were able to
push the project. But despite such delays, they had their estab-
lishment open for business by mid-summer.” *

Able to place matters in retrospect and thus affect that wis-
dom provided by hind-sight, the historian may feel satisfied that

va

=[bid., Feb. 12, 1891. 3 ieee
“The still-lingering influence of Edmund Brewton's manipulations? See

ante, 53. Boe) ae
“Brewton Leader, Feb. 12, 1891. 2 es ay.
*Ibid., Dec. 13, 1892. a ey
"Brewton Leader, Dec. 18, 1892. 2 ge

Brewton Standard Gauge, Jan. 24, 1895. A, ee
nIbid., Apt. 18, 1895. ae

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§ f , % 7k 5
94 ALABAMA HISTORICAL QUARTERLY | VOLUME ELEVIEN—1949 95

whatever were the shortcomings of the Brewton socicty during
the 1890's, there is little evidence that it was other than “normal”
in the terms of any typical Southern community of the same
period; and it was probzbly better than many. If it was unen-
lightened in several directions, so far as “enlightment” pertains
to the present, so will the present plead a poor case against the
future; if it was immoral through individual deviation from ac-
cepted mores, it was collectively shocked that there be such de-
viation; and if it continued to sunder caste from class on a basis
of materialistic possessions, it was yet concerned that the amor-
phous entity, “the town,” should benefit all social gradadtions by
being somehow made better. Again, if violent natures were im-
pelled to express themselves, there is ample evidence that thev
were properly restrained by self-control or community pressure.
No greater evidence of such restraint can be offered, perhaps,
than by the fact that Brewton never became the scene of so dis-
graceful an escapade as a mob lynching—and that despite the
existence of one grave provocation.

Druggist Sump Lovelace moved, as a highly respected citi-
zen, in the best social circles. If he evidenced any pronounced
weakness, it lay in a proclivity for lending money to all who pro-
fessed to need it. In such circumstances, Charley Harris, colored,
drifted into a mild debt but, some time being allowed to pass,
showed no disposition to settle his accounts. On Monday evening,
October 6, 1890, Lovelace was walking with a few friends when
they chanced by Harris’ shanty. Quietly he slipped away, and his
companions were unaware of his absence until their conversation
was silenced by five or six revolver shots. They rushed into the
shanty, to find Lovelace sprawled on the floor, quite dead, and
Harris standing over him with a smoking weapon. In a day when
it was a matter of common caution in the South for a white man
to go armed, Lovelace had proven no exception, and Harris was
suffering from an ugly wound in the left shoulder. He was quickly
whisked off to jail and given proper medication.

Started as no one knows how, reports to the effect that a
race riot was raging in Brewton reached the state capital; and
from Montgomery Governor Seay telegraphed Sheriff Jim Mc-

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06 ALABAMA HISTORICAL QUARTERLY

upon. Ilis Excellency need have had no concern. Save for the
buzzing of excited groups on street corners, the town was calm,
and negroes had discreetly withdrawn to their dafkened resi-
dences." No riots, no lynchings took place, and Harris was con-
demed to death by the orderly processes of law. But out-of-town
journals, disappointed of an anticipated fare of sensationalism,
would not be denied, and, with all of that objectivity employed
by a Penthouse Easterner penning a novel on life in the South,
they now came up with a weird defamation, inferring from the
meager facts available to them that the dead man “had gone to
the house for immoral purposes...” Charles Robbins, who pre-
sumably was more conversant with the principals involved in the
murder, as well as the situation leading to it, angrily refuted this
“gross injustice.”

During the ‘nineties the womenfolk were becoming more
daring and, possibly as a result of having hearkened to feminist
agitation, freed themselves’ of encumbering apparel to the extent
of revealing shapely ankles. This pretty well confirmed the popu-
lar suspicion that the nether extremities of a female’s limbs were
much like those of a male’s legs. The men, meanwhile, if not
making notable progress, effected some change by donning loose,
ill-fitting coats, trousers that gnawed at the ankles, and derby
hats seemingly had been fashioned from a reluctant but not in-
vincible piece of stove pipe. Girls ewre wearing billowing heaps
of cloth and, as though to accentuate the differences which would
mark their more adult years, braided their hair in varying lengths
and tied it with flairing ribbons. And boys, the while, were con-
tent to ape their male elders so far as headgear was concerned,
usually with the addition of a string extending from the brim to
their lapels, so saving a chace on a windy day; but their breeches,
of course, were of the knee-length variety, so necessitating the
use of stockings (usually on the dark side), which disappeared
into high laced shoes.

How “gay” the decade was is debatable. “The deacons of the

“Brewton Standard Gauge, Oct. 9, 1890.
D = J fa () Q

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VOLUME ELEVEN—1949 97

Missionary Baptist church, with the Rev. Crumpton present, met
in September, 1892, and resolved to erect a place of worship in
town:” and it is to be suspected that they lent their own powerful
voices to those demanding the continuance of the local prohibi-
tion ordinance. At any rate, the Gauge exulted in the allegation
that “Brewton is a prohibition town, without a saloon or gaming
table or other temptations to idleness or profligacy.”” All of which
is admirable but leads to the pertinent question as to what many
citizens did do for recreation. And the question, being unan-
swered, leads in turn a!most inevitably to the supposition 7%
ordinance or not, a reasonably large number probably found re-
Jaxation in surreptitious drinking. At any rate, it can be safelv
stated that if the overwhelming popular sentiment in the 1890's
was for the exclusion of alcoholic beverages from the corporate
limits, that sentiment was to undergo an amazing shift within the
next ten years, when the entire matter would come up for pub-
lic review.

Brewton Standard Gauge, Sep. 18, 1892.
“Ibid, Sept. 8, 1898.

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HAIRIS,

Imani

ny - Rlabama,

by TOM GARDNER AND SUSAN SCHNEUR

Federal District Court Judge Virgil Pittman
granted a stay of execution in the case of Imani
(Johnny Harris), a Black prisoner activist scheduled
to die in Alabama’s electric chair on Friday, March
10. Imani is one of five Black prisoners charged with
killing a guard who died in a January 18, 1974 prison
rebellion at G.K. Fountain Correctional Center near
Atmore,’ Alabama. The guard and a prisoner died
after an assault on a prisoner protest by the warden
and guards. No guards were indicted in the death of
the prisoner, Chagina (George Dobbins), who was
apparently murdered in an ambulance en route to the
Mobile General Hospital. The three other prisoners,
known as the Atmore-Holman Brothers, who went to
trial received sentences from 31 years to life. One of
the prisoners, Frank X Moore, was ‘‘found’’ hanging
in his Escambia County jail ceil before he could stand
trial.

The March 7 hearing followed four denials in Ala-
bama state courts of motions for a stay of execution.
The execution date was set by the Alabama Supreme
Court on Dec. 9, 1977 after it refused to reconsider

. its 5 to 4 vote upholding Imani’s murder conviction.

Imani was convicted and sentenced before an all-
white, all-male jury in Bay Minette, Alabama on
Feb. 28, 1975. Georgia Attorney. General William
Baxley personally prosecuted him, and asked the jury
to convict Imani even if they didn’t believe that he ac-
tually killed the guard. There was no direct evidence
linking Imani to the murder. Baxley told the jury, ‘‘It
is enough if you are convinced that he participated i in
the riot, in which the guard was killed.’’ This applica-
tion of the aiding and abetting statute has led Imani’s
supporters to declare his death sentence a ‘‘political
execution’’, in which a man who neither intended or
committed murder has been sentenced to die simply

‘on the basis of participating in a protest of prison

conditions which were themselves later declared by
the Federal Courts as ‘unconstitutional’ and ‘cruel
and unusual punishment’.

Imani, the first person scheduled for executicn in
Alabama since 1964, was sentenced under a civil-war

era statute which mandates an automatic death sen--

tence for a prisoner serving a life sentence who is con-
victed of first-degree murder. The constitutionality
of the statute has yet to be resolved by the U.S. Su-
preme Court. One clear flaw in the law is that it does
not take into account the possibility that the original
life sefitence may have been meted out unfairly.
Imani’s attorneys are contending that this is exactly
what took place in Imani’s original life sentences, re-
ceived in 1970 in Birmingham. He had been charged
with four robberies of very small amounts and one
rape, offenses which under then-applicable Alabama
law were punishable by death. His court-appointed
lawyers had failed to prepare a defense or call his ali-
bi witnesses. They told Imani he had a choice to

plead guilty to crimes of which he says he is innocent, -

and receive a life sentence, or face the electric chair.
Faced with this ‘‘choice,’’ Imani finally pled guilty,
and was instantly given five life sentences by the.
judge. He later filed an appeal of these sentences on
his own from prison, but the appeal was summarily
dismissed with no hearing and no investigation.
Imani’s current lawyers have now filed a challenge
to the original life sentences and are requesting ‘‘a
full and fair hearing on the charges’’ for Imani. One
of Imani’s lawyers, Guild member Dianna Hicks,
told Federal Judge Pittman at the March 7 hearing,

“Until final adjudication of these and other issues.

raised on appeal is made, Johhny Harris will not
have received due process.’ The attorneys contend
that if the five original life sentences are set aside,
Imani would not then be eligible for the death sen-
tence under the old Alabama law which he was
charged with violating.

Eric Bowen, representing the Alabama Attorney
General’s office, argued to the judge, ‘‘This is not an
urgent issue, these five life sentences, and the Federal
Court should not take jurisdiction in matters that can

be resolved later in state courts.’ Bowen’s statement |

on urgency, made 59 hours before the scheduled exe-
cution, produced the following exchange with the
judge:

‘Judge Pitman: ‘‘How can you say it is not urgent if
a man is scheduled to die and the death sentence de-

_ Susan Schneur and Tom Gardner are NLG attorneys

in Atlanta.

Wins Stay
of Execution

oer

Guild lawyer Dianna Hicks arguing on behalf of Im-
ani in Alabama Supreme Court.

pends on the validity of the five original life sen-
tences?”’

Bowen, for the state: “‘They could first resolve the
constitutional issues and then go back to state courts

on these and other issues.’ 4

Judge: ‘‘What good would it do if the man is exe-
cuted Friday and a hearing is held on it next month?”’
... “Can these original life sentences be resolved by
Friday?”’

Bowen: ‘‘I am assuming a stay will be granted by
another court.’

Pittman: “Address your —_ to me. . . this
thing is in my court, its with me now. . . I can rt guess
what will happen in other courts.”’

Bowen: ‘‘For this court to take jurisdiction now
would be an abuse of the court’s discretion. . . If this
was allowed to happen in every death penalty case
there would never be any executions in any state of
the country. .
tionist position.’

Bowen’s derogatory use of the term ‘‘abolitionist’’
turned many heads in the packed courtroom. Some
possibly recalled that the county where the Atmore
and Holman prisons are located, Escambia County,
was the last county in the United States to free its
slaves. Or perhaps they remembered an incident only
last year, in which a dozen vigilante, off-duty Mobile
cops attempted to lynch two young Black community
organizers. Ex-prisoners in the courtroom were
reminded of the slave-labor conditions of working 14
hours a day in the cane-fields and vast plantation sur-
rounding the prison for 25 cents a week.

» The modern-day ‘“‘abolitionists’’ were represented

by the Committee to Defend Imani and Stop the’

Death Penalty, the Prisoners Solidarity Committee
and the Mobile Equal Rights Council as well as repre-
sentatives of the Dawson Five Defense Committee

shouting from the street.’

- You would only be serving an aboli-

Demonstrators brave downpour at Mobile Alabama Federal Senate SER demanding stay of execution
for Imani. Judge Pittman senceneee the geeenie” in court as

= the
od

who picketted Gateide ‘the courtroom before the

hearing. %
The picket line Guide the Mobile Federal Court

building was held as part of a national and interna- ~:
tional campaign to stop Imani’s execution which —
mushroomed to a full-scale ‘human rights cam- |
’ in the past two weeks as the courts began to
clear the way for the first involuntary execution since _

paign’

the revival of the death penalty. The campaign in-
cluded hundreds of telegrams which were sent to
Judge Pittman urging a stay be granted. There was
also a demonstration on Monday in front of the Fed-
eral Court building in New York City organized by
the Prisoners Solidarity Committee to demand the
execution be stopped. In the past week, a London
representative of Amnesty International visited Ala-
bama on a fact-finding mission concerning Imani’s
case, and several members of the Black Congression-
al Caucus in Washington expressed their concern for
justice to Alabama state officials. The international
press, including Soviet News Agency TASS, has also

shown great interest in the possibility of the execu- -

tion of a political dissident in the U.S,

‘ Before issuing the stay of execution, Judge Pitt-
man said that he considered the telegrams ‘‘inappro-
priate’ and claimed that after the first few, he re-
fused to read them and instructed his clerk not to tell
him how many there were. Defense committee organ-
izers estimate the number of telegrams received by
Pittman to be well over 1,000 in a four-day cam-
paign. The judge said, ‘‘I hope the Court would treat
with the same compassion the case of a person who
had only his one voice raised in his behalf as it would
for a person who had 10,000 voices raised for him.”’

While the Judge may not have read the telegrams,

he could not help to hear from his second-floor yA

chambers, the chants of ‘‘Imani is Innocent, Stop the
Execution’’ and ‘‘Death Row Must Go’’ raised by
the picketters who braved a gulf-coast downpour
outside. In court, the Judge denounced the picket as,
‘«”. . an attempt to influence the court by shouting
from the streets.’’ He warned, apparently oblivious
to the first amendment, ‘‘If this case comes before
this court again, I do not want such a demonstration
to happen again.’’

A spokesperson for the Committee to Defend
Imani and Stop the Death Penalty said in response to
the Judge’s warning, ‘‘No Judge in the land can void
the first amendment and prohibit peaceful demon-
strations. We have every intention to continue
mounting a national and international effort to free
Imani who is innocent of the charges that sent him to
prison, innocent of the charges that sent him to death
row, and who has committed one and only one act
for which the Alabama officials have sought to end
his life—he is a Black man in Alabama who has stood
up and fought for his dignity and rights as a human
being.’’

The Guild passed a resolution in support of Imani
at the Washington N.E.B. Contributions to aid in the
effort to save Imani are urgently needed, checks and
requests for more iriformation may be sent to:

Imani Defense Hace PO Box aM Atlanta, Ga.
30301 a2)

‘

JaUupsvy WoL :Iipasd

‘an raceme to i hm the court by

So Per erty

a id


THE HAWES AFF

JEFF NORTHRUP

And all our yesterdays have lighted fools
The way to dusty death.

William Shakespeare, Macbeth, V, iii, 22 - 23.

In December of 1888, murder was committed in Bir-
mingham. Not that this crime was of and by itself
worthy of much notice in the early history of the city.
Brawls, beatings, shootings, minor riots and civil dis-
order in general were almost weekly and certainly
monthly occurrences in what bore ali the earmarks of
a restless frontier boom ‘town. But the victim of this
crime seemed in her death to touch even the more
calloused hearts of the local citizenry. The body ef a
little girl, judged to be about twelve vears of age and
later identified as May Hawes, was found floating on
East Lake on December 4, 1888. When, in the ensuing
days and weeks, the bodies of her sister Irene and her
mother Emma P. Hawes were also found at the bottom
of the lake at Lakeview Park, the Birmingham popu-
lace, in righteous indignation, cried out for retribu-
tion. Circumstantial evidence pointed to the husband
and father of the deceased, one Richard R. Hawes:!

Birmingham was a frontier town in 1888, but it was

‘at least a thousand miles east of any point that any

schoolboy might identify as the edge of American
civilization. Why had so many rows of corn in north-
central Alabama, seemingly passed by time and space,
suddenly become a real estate agent’s dream? The
answer, as all know, lay in the mineral wealth beneath
those cornfields. In the twenty years from its found-
ing in 1871, Birmingham matched its birthday with a
twenty-fold increase in population. Unencumbered
with the gentile nostalgia for antebellum folkways
that enveloped so many other Southern cities with
longer histories, the Magic City looked forward to an
industrial future, not backwards to an agrarian-dom-
inated past. If the Old South was typified by a sort of
aristocratic languor, Birmingham typified the New
South-—sweaty blue-collar industriousness. In the lan-
guage of the Chamber of Commerce, the city was “wide
awake.” There was great wealth to be had if one were
shrewd at business, and as a result men worked hard,
played hard, and lived hard. “Birmingham, in short,
was an ambitious, grimy, gangling voung giant, an un-
refined but robust new metropolis of the New South.’

‘For an account of the Hawes riot and events leading up to it.
see: Jeff Northrup, “The Hawes Riot: All the News Unfit to
Print,” The Journal of the Birmingham Historical Soctety, Vol,
V, No. 4 (Birmingham, Alabama: Birmingham Historical Secie-
ty, 1978), pp. 16-25.

*Carl V. Harris, Political Power in Birmingham, 1871-1921
(Knoxville, Tennessee: The University of Tennessee Press.
1977), p. 38.

It has been written that those who forget the past
are condemned to repeat it. Whether or not Birming-
ham businessmen knew this maxim, they were aware
that boom towns had shown a marked proclivity for
going bust. The city fathers, were, therefore, anxious
to keep Birmingham's image favorable, or at least as
favorable as those melodramatic early years of the
town’s history tvould permit. Needless to say, the
rather bizarre and grisly nature of the Hawes murders
had to be expiated quickly. Too much bad publicity
meant bad public relations, and bad public relations
meant slower growth, bad business, and lower profits.

The Age-lerald. the city’s major daily newspaper,
took its cue and immediately Decame chiet prveacuter,
IMdge. and jury in he Pawes Weather Nborthsa before
Dick HLiwes was brought to trial, de was convicted in
Hewspring, and: through that medium, recognized as
guilly in the minds and hearts of many of the news-
paper's readers. The Age-Herald must bear some re-
sponsibility for the unfortunate series of events follow-
ing the arrest and incarceration of the accused.

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Richard’ Hawes, who was convicted of the murders of his wife
and two daughters, and was hanged for the crime. This engrav-
ing was made from a photographic portrait taken by Daniel C.
Redington, an early Birmingham photographer. From = Gold-
smith B. West, The Hawes Horror and Bloody Riot at Birming-
ham (Birmingham: The Caldwell Printing Co., 1888).

Richard R. Hawes was born in Russell County, Ala-
bama, in 1856. His childhood was spent in Columbus,
Georgia. He enjoyed little formal education, and his
first job, that of a wood-passer on the Selma, Rome,
and Dalton railroad, reflected that fact. But Hawes
worked hard and faithfully, and was promoted to fire-
man and then to enginneer. He served on several rail-
roads, and at the time of the crime was working for
Georgia Pacific, running his engines from Birmingham
to Columbus, Mississippi, and back again. Jn 1880 he
married Emma Pettis of Atlanta, a young belle of
eighteen years. For undiscernible reasons, Emma soon
turned to other suitors and to drink, and the resulting
marital difficulities prompted the couple to leave At-
lanta for Montgomery, and finally to Birmingham.
Dick Hawes thought of divorce, and while still in
Georgia began legal proceedings toward that end.
Events were later to show that these proceedings were
never consummated. Four children were conceived in
this ill-starred relationship: one had died in infancy,
the others were named May, Willie, and Trene.

The identification of the body of May Tlawes on
Wednesday afternoon, December 5, 1888, was almost
simultaneous with the arrival of a telegram at the Age-
Herald offices announcing social news of what normal-
ly would have been of a secondary interest: the cul-
mination of a wedding that day in Columbus, Missis-
sippi. The groom: R. R. Hawes of Birmingham. The
bride: one Mayes Story, of Columbus. This amazing
turn of events almost caught the local constabulary off
their guard, for they barely had time to rush to the
depot and arrest the bridegroom, who by coincidence
was passing through Birmingham with his new wife, on
their way to a Georgia honeymoon. The local populace,
informed of every twist and turn of the tawdry plot by
the Age-Herald, was filled with anger and confusion.
Where was his first wife, Emma? Where were their
other children, Willie and Irene? How could Richard
Hawes marry again?

The discovery of Emma’s beaten and bruised body
in the lake at Lakeview on the morning of the eighth of
December seemed to answer these questions for the
newspaper and its rapidly increasing readership. As
the eighth fell on a Saturday, the ranks of the local
citizenry were swollen as denizens of the surrounding
suburbs came downtown to spend their paychecks, hear
the latest gossip, and speculate concerning what was
popularly becoming known as the Hawes Horror.
Fueled by alcohol and what can modestly be termed
intemperate rumor-mongering by the local press, the
mood of the townspeople became ugly. No one could
afterwards say with any degree of certainty where the
mob formed. Every street corner and public house
served as a magnet for overly emotional, self-righteous
men bent on revenge. By ten o’clock in the evening, a
mass of humanity had formed in front of the new jail
on Twenty-first Street, between Third and Fourth
Avenues, North. Their purpose was the lynching of
the prisoner Hawes.

16

Between the mob and its objective stood the Sheriff
of Jefferson County, Joseph S. Smith. Sraith had
taken the precaution of swearing in extra deputies, and
that night was surrounded by forty rifles. As the horde
of several thousand began wedging itself into the nar-
row wley leading to the jailhouse door, Smith drew an
imaginary line and ordered the crowd to halt. The
mob pressed inexorably forward. A second order also
went unheeded. The command to “Tire!” was given,
and when the shooting was done, eleven citizens lay
dead. Units of the Alabama Militia were called out to
clear the streets, which they did successfully, and a
macabre quict settled on Birmingham the next Sunday
morning. In less than a week, the unabashed booster-
ism of the city by its inhabitants was replaced by the
stark realization that the future might not be as fault-
lessly grand as once imagined. A pail fell over Birm-
ingham, fully as dark as the soot spewed into the at-
mosphere by its blast furnaces. The rabid emotionalism
of the preceding days was replaced by a quiet resolve:
“Justice” must make Richard Hawes pay for the shame
and sorrow he had caused the city.

The months following the riot and leading up to the
trial were devoid, for the most part, of any significant
news concerning the accused. The lake at Lakeview
was partially drained, vielding the body of Irene.
Willie was found alive, living in Georgia at the home
of Hawes’ brother, Jim. Just before Christmas of 1888,
the Grand Jury indicted the accused for the murder of
all three. The trial was scheduled to begin April 22,
1889. Although Dick Hawes was charged with miur-
dering May, Emma, and Irene, the state decided its
strongest case included the facts surrounding the death
of May Hawes. Accordingly, this indictment was the
first to be brought to trial.

As the weeks stretched into months, and the awful
events of the previous December faded into memory,
tensions subsided somewhat. A maudlin curiosity and
fascination concerning the accused replaced the abject
hatred earlier directed at the same target. On April 1,
1889 --- April Fool’s Day --- the Age-Flerald greeted
its readers with what appearcd to be sensational news:
the escape of the prisoner Hawes! With a bold heading
and a triple lead, the newspaper’s account ran thusly:

At about 3 o'clock Monday morning three men
came to the jail, two of whom pretended to be offi-
cers bringing in a prisoner. One of the three was
securely bound, and when the jatlor unlocked the
door to admit the pretended prisoner, he was knock-
ed insensible, and fearfully beaten. Ir the meantime
the key to Hawes’ cell was secured, ihe cell unlocked
and Hawes liberated. Hawes was up and dressed,
evidently knowing that help for fis rescue was ai
hand. The rescuers with Hawes then walked out
and disappeared.?

8Quoted under the heading “Dick Hawes at Liberty” in The
Greenville Advocate, April 3, 1889.


From Advertiser Files .

100 years ago (1890) — At 12:58%, in Bir-
mingham, Dick Hawes was hanged for his
atrocious crime. By 9 o’clock in the morn-
ing the county jail was besieged by a
crowd of persons morbidly curious to see
the hanging, until finally the office doors
were closed. At 11 o’clock there were 2,-
000 people on the street corner standing
in a chill east wind. At 12:45 the sheriff
and deputy holding Hawes’ arms walked
slowly to the scaffold, with a rubber over-
coat tied around the noose to protect it
‘ from the rain. Then the condemned man
paused in his walk to state that he: died
without resentment. The crowds uncov-
ered their heads and the trap was sprung
‘asa prayer was said.

Montgome

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abamaq e Thursday, March 1,1999

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” HAWES, Rychard R., white, hanged Birmingham, AL, February 28, 1890.

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An engraving of the gallows on which Richard Hawes met his death on February 28, 1890.
photograph by J. Horgan and appeared on the feont pages of both the daily and weekly Age-Herald. In a# final irony of the case,
prom The Age-

the gallows was constructed by a juror in the case, Poo Griffin, who of course had voted for the death sentence

Herald, May 5, 1890.

14

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HAWES, Richard. white. hanced Bites oes yd Sa RCN el
oo ? hanged Birmingham, Alabama, r bruary 28, 1890,

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were white males. N. IF. Thompson, a forty-four year-
old lawyer and real estate agent, was elected foreman.
E. T. Cox, thirty-three,-was with the transportation
department of the Louisville and Nashville Railroad.
T. H. Friel, twenty-eight, was the son of the owner of
the Friel coal mines near Blue Creek. J. A. Griffin
was a middle-aged carpenter. J. D. Perkins, born in
England thirty-five years before, was in the building
and contracting trade. J. M. Young, aged thirty, was
a farmer, as was G. W. Cross, thirty-eight years old.
D. R. Dunlap, forty-three, was a real estate agent who
had been made a U.S. Marshall shortly after Grover
Cleveland’s election. F. G. Sheppard, in his mid-for-
{ies, was English. He was a builder-contractor, who at
the time of the trial was operating a coal and wood
yard. Hiram Ellis was described as a “prosperous”
thirty-seven-year-old-farmer.- W. W. McGlathery, the
oldest of the jurors at age fifty, was a lawyer and mer-
chandiser, and J. R. Rockett, forty-seven, was a law-
yer, merchant and business entrepreneur. With this
group of rather upper-class peers lay the future of
Richard Hawes.!*

Before the jury retired for mid-day dinner, a vote
was taken on the question of guilt or innocence. They
were unanimous for guilt. Obviously men possessing
strong constitutions, they then broke for lunch. After
dinner, two ballots were taken on the question of pun-
ishment. On the first, eleven voted for the death penal-
ty, one for life imprisonment. The identity of that
minority of one has not been recorded, but it was of
no real significance. On the second ballot, the jurors
were unanimous for death. They had deliberated for
fifty-five minutes.1°

The jury returned to the courtroom, and were di-

rected by Judge Greene to hand their written verdict |

to the clerk, which foreman Thompson did. The clerk
read the verdict before the court, and the Age-Herald
recorded the dramatic scene that followed:

There was an interval of silence when all eyes
were turned on the prisoner.

le had been looking directly at the clerk as the
latter read the verdict. Now he swallowed as though
there had come a lump in his throat, and passed his
hand across his forehead. He let it remain where it
would shade his eyes, and resting his elbow on the
table, looked down at a bit of paper before him, He
did not change color nor was there any sign of emo-
tion beyond those noted.“

Judge Greene selected a day for the hanging, but
that date came and passed without incident. The rea-
son for this was that defense counsel had appealed the
case before the Alabama Supreme Court, and that

15.4 Memorable Case,” The Weekly Aue-Herald, May 8, 1859.
16“Hawes Guilty,” The Weekly Age-Herald, May 8, 1889.
‘Tord.

august body had accepted Taliaferro’s petitions of ¢x-
ception. ‘The Tlawes case was placed on the fall ses-
sion calendar, arguments were heard, and a decision
reached as to the validity of the criminal court’s ver-
dict. ‘The attorneys for the defense filed exception
after exception over the conduct of Judge Greene’s

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| a

The jury sheet for the Hawes trial, with the signatures of the
jurors. Dccument from the collections of the Department of
Archives aad Manuscripts, Birmingham Public Library.

21

—


*

a

soon after entering prison at Wetumpka. John Wylie
was also brought to trial for the murders of Irene and
Emma, but the case was dismissed for lack of evidence.
Mayes Story Hawes filed for a divorce and petitioned
the Mississippi legislature in order to restore her
maiden name.

As for the city itself, the ugly blemish of the Hawes
affair was soon covered and all but forgotten. The re-
newed fervor of image-conscious entrepreneurs and the
passage of time provided 2 most effective whitewash
for Birmingham’s historical facade. Its businessmen,
newspapers, and public officials prepared for the tum
of the twentieth century with a civic pride tempered by
the harsh realities of life. Sinclair Lewis’s novel of
rampant, unfeeling commercialism set in the fictional
mid-West metropolis of Zenith was not unlike the un-
abashed boosterism that enveloped Birmingham's busi-
ness elite. Fifteen people had been killed in the city
as a direct result of the Hawes affair: three had been
brutally murdered, one had been hanged for those
rnurders, and eleven had died as a result of the riot in

front of the jail. Responsibility for the deaths of these
last was never determined. Although there is little
doubt of the ultimate guilt of Richard Hawes, his trial
was a farce. The role of the newspapers in reporting
“what must have happened” and_ their conclusion,
months before the trial took place, that Hawes was
guilly, was reason enough for a change of venue. Be-
sides the widespread and sensational nature of the re-
porting of the murders, the riot itself was yet another
reason to believe that Hawes could never receive an
impartial trial from unprejudiced jurors within Jeffer-
son County. But Birmingham was anxious to excul-
pate itself of the Hawes Horror, with the result that
boosterism was served and justice was slighted. It took
another seventy years and a still more painful confron-
tation with unequal justice and painful publicity for
Birmingham’s business community to realize the im-
portance of impartiality. It was a pity. A lesson that
could have been learned in the 1890's might have
saved Birmingham from some of the turmoil it suf-

~fered in the 1960's.

23

court. Primary among their arguments was the re-
jection of three motions for a change of venue, filed on
January 24, February 8, and April 22, 1889. Talia-
ferro protested that the Hawes riot, the inflammatory
nature of the newspaper coverage, and the publication
and widespread dissemination of Goldsmith B. West’s
little book, The Hawes Horror and Bloody Riot at
Birmingham: A Truthful Story of What. Happened,
all had prevented Hawes from obtaining a fair and un-
prejudiced hearing from a panel of his peers in Jeffer-
son County. Defense counsel also argued that the ad-
mission of testimony concerning the murders of Emma
and Irene Hawes was also prejudicial to the jury.
These and other, more legally technical exceptions
were taken under advisement by the highest tribunal
in the state. On Monday, January 13, 1890, in an opin-
ion written by Justice McClellan, the decision in the
appeal of the case of Hawes vs. the State of Alabama
was rendered: the judgment of the Criminal Court of
Jefferson County was affirmed. Every exception had
been rejected. The Supreme Court reset the date of
execution for February 28, 1890.'*

Richard Hawes, last month in jail proved unsatis-
factory for those who wished for a denouement of the
murder plot. Straightforward confessions from the lips
of the condemned man were not immediately forth-
coming. His brother Jim tearfully pleaded with Dick
to tell all, so that Jim’s own name would be cleared of
any wrongdoing in the public eye. His conscience hav-
ing been touched by sibling devotion, Hawes then ad-
mitted to his brother and Sheriff Smith that he had
hired one John Wylie to kill Emma, Irene, and May,
and that that job had been accomplished on Saturday
night, December 1. This was not widely believed, as it
still flew in the face of the preponderance of testimony
of those who had supposedly seen Hawes with May on
Monday night. A few days later Dick allegedly con-
fessed to a guard that he had indeed hired John Wylie
to commit murder, but only for the purpose of doing
away with Emma and Irene; Hawes explained that he
intended to keep May. But when it appeared that May
might have some knowledge of the murder. of her
mother and sister, Hawes adrnitted that he felt. obliged
to get May drunk, take her out to East Lake, and
drown her. When the guard made this more plausible
confession public, Hawes denied having ever uttered
the story. However, since he had admitted tn both
“confessions” that he had either murdered or hired a
murderer, the public conscience was mollified:”?

Hangings were not unusual events in Birmingham.
Gilbert Lowe, a condemned jailmate of Hawes, swung
at the end of rope on February 21. As February 28
approached, however, the collective pulse of the city
quickened. Few men’s lives had maddened and. frus-

18“ Affirmed!” The Weekly Age-Herald, January 15, 1890.
19Fawes’ Tale,” The Weekly Age-Herald, February 12, 1890;
and “Suicide!” The Weekly Age-Herald, February 19, 1890.

22

trated the righteous people of Jefferson County as had
the life of Richard Hawes, and Sheriff Smith was afraid
that the condemned man’s intentions were to frustrate
the local populace again, this time in death by suicide.
The Sheriff read all of the prisoner’s outgoing letters,
and as the day of execution drew nigh, Hawes’ notes
seemed to indicate a desire to take matters into his
own hands. Smith feared that Hawes planned to cheat
the scaffold, and took precautions to prevent that. The
prisoner was moved to another cell, and presented with
a new suit of clothes, so as to prevent him from con-
cealing any intended instrument of death. The guard
was doubled: one deputy was stationed within Hawes’
cell, another without.??

The morning of the twenty-eighth dawned appro-
priately gloomy, and rain fell intermittently. The gal-
lows stood in an enclosed courtyard, and once passes
had been issued to the gentlemen of the press, there
was room for few others. Despite the fact that nothing
of the proceedings could be seen, a crowd estimated
by the Age-Herald at around 5,000 (out of a total
population of 20,000) convened on Twenty-first Street
and Fourth Avenue, North. 'Those few who obtained
passes were, according to the newspaper, “looked on
with open envy.” Inside the jail, Hawes was brought
his last meal, compliments of the Palace Royal Hotel.
It consisted of a tenderloin steak, poached eggs, pota-
toes, biscuits, and coffee. He ate little. Taliaferro
called on Hawes, as did Frank Barnett, the youngest of
his defense attorneys, with whom the condemned man.
had struck up a friendship. At the prisoner’s request,
Barnett accompanied him to the gallows. The clergy
was represented by the Reverend D. I. Purser, the
Reverend Dr. Slaughter and Rabbi Risenburg. About
12:45 p.m. Hawes was led out of his cell, neatly dressed
in a black cutaway suit, white shirt with a stand up
collar, and a necktie. In his buttonhole he wore a
bouquet of geraniums and lilies of the valley. As he
mounted the scaffold, Hawes was unaware of the final
irony of his life: the gallows had been constructed by
J. A. Griffin, a carpenter by trade, whose only previ-
ous claim to notoriety had been that he had served on
the Hawes jury.”!

Richard Hawes’ death on the scaffold ended one of
the more appalling episodes in the carly history of Bir-
mingham. For most of its citizens, life went on. I*or
those more intimately related to the unhappy events,
their lives were forever changed. Hawes was buried in
Atlanta, with only a few friends and farnily members
present. No minister served at graveside. Willie
Hawes also returned to Atlanta, to live with the family
of Jim Hawes. Fannie Bryant was convicted as an
accomplice in the murders of Iamma and [rene Hawes,
and received a life sentence. She was killed in a fight

Suicide!” The Weekly Age-Herald, February 19, 1890.
21"F{fawes Death on the Gallows.” The Weekly Age-Herald,
March 5, 1890.

scrited as seemingly intelligent and of good character,
which raade it still harder —- as so the editors con-
cluded — to imagine how he could have “in the most
deliberate and cold blooded manner [made] way with
his wife and children in order that he [might] enjoy
without annoyance the pleasure of a second mar-

ITE

riage. No jury had as yet tried Hawes, nor had the
coroner’s inquest as yet found reason to condemn the
man. ‘The same cannot be said of the informal juries
on the newspaper and in the streets.

Saturday morning dawned with the promise of fate-
ful events. Crowds filled the streets at an early hour,
and eyewitnesses recorded that there was a sense of
expectancy among the restless multitudes.2° At about
half-past noon, even the worst suspicions seemed to be
confirmed. The lake at Lakeview, the center of one of
the most fashionable suburbs of the young city, was
thought by many, including Coroner Babbitt, to be the
final resting place of the missing members of the Hawes
family, due to certain clues (a blood stained axe and
oat sack) unearthed in the vicinity by detectives and
its proximity to the Hawes’ house. On that morning,
Babbitt ordered the lake dragged, and operations there
soon yielded the beaten and bruised body of Emma
Hawes (the body of Irene was found over a week later
when the same lake was drained). The frustrated, self-
righteous anger of the citizenry, an ember fanned for
days by the grim accounts and hyperbolic speculations
of the press, was about to burst into flames.

The only local account of the preparations in Bir-
minghain that Saturday to meet the threat of violence
must be viewed with a somewhat jaundiced eye. Gold-
smith B. West, already mentioned as the author of The
Hawes Horror, served as his own apologist in the mat-
ter. He explains why, despite urgent and repeated re-
quests on his part, the state militia was not called into
action sooner. West was an officer in the militia and
one of its highest ranking members continually present
at Birmingham during the week. He saw his role that
Saturday as that of a prophet scorned in his own land:

Notwithstanding the censure, both locally and from
his military superiors, which had been visited upon
Major West for his insistence upon the mobilization
of the Birmingham military on Thursday night, Dec.
6, that officer again busied himself throughout the
entire day of Saturday to impress the authorities and
the officers of the troops stationed here of the im-
portance of being ready, and availably and thorough-
ly ready, in case of an emergency.”!

According to West, he telegraphed the governor and
Colonel Jones,*2 who was in command of the militia
(Second Regiment, Alabama State Militia) in the Bir-

19°Vhe Hawes Horror,” The Daily Age-Herald, December 8,
1888.

-oWest, The Hawes Horror, pp. 90-91.

21] bid., p. 93.

22Colonel Thomas G. Jones was himself appointed Adjutant
General in 1889, and in 1890 was elected Governor of Alabama.

mingham district, warning them of the impending
crisis. Neither of these telegrams is mentioned in
Jones’ reports following the riot.22 West also claimed
that he warned Mayor Thompson at 3:00 p. m. and
again at 5:00 p. m. that the military should be called
to clear the streets of increasingly large and restive
crowds. The mayor declined to do so, supposedly for
the reason that he feared the effect such an action
would have might be the contrary of what was in-
tended; that is, to excite the mob even more. Although
West disavowed any motive on his part to discredit

*3Garland, Biennial Report of the Attorney General, 1889 and
1890, pp. 33-54.

Residence of Dr. H. M.
Caldwell.

| First Presbyterian Church.

WOU Few Est

eae Old Jail
ouse, all.
8 5
=
i g s
i gl 5
a
cea bes
UNE Setar EN ena h i Jail Alley. -
fae cle a.
f| 2 Go
sy: 8 Bo
2 : By so
i 24
: a
iff ifs 23
renal = eg
FF, ; et rca

TO Be ed
Ground plan of the County Jail and surroundings.
{Reduced from the Age-Herald diagram. ]

vi FENCE.--(That around Court House, 6 feet in height.)
———Brick walls 14 feetin height,

A ground plan of the area surrounding the Jefferson County
Courthouse, the area in which the Hawes Riot took place on
Saturday, December 8, 1888. From Goldsmith B. West, The
Hawes Horror and Bloody Riot at Birmingham: A Truthful
Story of What Ilappened (Birmingham, Alabama: The Caldwell
Printing Co., 1888).


The Age-Herald exhibited an almost schizoid edi-
torial position in regards to the accused and the ex-
cited elements of the population in the days leading
up to the riot. The paper, as well as concerned busi-
nessmen of the city, were worried about Birmingham’s
image. All were fearful that the news that mob vio-
lence had occurred on their city’s streets would ad-
versely affect the rosy economic outlook for themselves
in particular and Birmingham in general. But the
paper was also concerned that Birmingham could num-
ber among its inhabitants a figure capable of commit-
ting the ghoulish crimes of which Dick Hawes stood
accused. In an editorial short, the Friday morning
edition of the Age-Herald decreed that lynching was
beyond the pale of the law, and should any community
feel forced to resort to violence, the reputation of that
place would be irreparably damaged. This was the first
mention in print of any possibility of a threat to the
legal process. But in the next column, the newspaper
opined that “infanticide, under any condition, is
among the most revolting, as it is the most unnatural
of crimes, but when carried out deliberately and in cold

A view of the lake at Lakeview Park, Highlands, Alabama, taken approximately three years after the discovery of the bod
Emma Hawes and her daughter Irene there late in 1888. Photograph from the Collections of the Birmingham Public Library.

blood for a selfish purpose, it becomes shocking in the
highest degree.”!7

The same dichotomy of interest was indicated in the
Saturday morning edition. In the lead editorial, en-
titled “Abide by the Law,” the Age-Herald editors
concluded that “there has been no serious talk or even
thought of mob violence.” Even though the deed was
nevarious, the paper again counseled against lynching,
favoring instead a just, albeit speedy trial. The editors
concluded: ‘There have as yet been no demonstrations
that would justify the belief that any violence is con-
templated and we hope there will be none.”’!® Yet on
the same page, presumably the same editors indulged
themselves in the kind of rumor-mongering and loose
talk that raged unchecked in the streets. Under the
heading ‘“‘The Hawes Horror,” the accused’s guilt was
assumed: “If R. R. Hawes is guilty to the full extent
that he is suspected . . . his crime has hardly ever been
equalled for cold blooded atrocity.” Hawes was de-

“The Hawes Horror,” The Datly Age-Herald, December 7,
1888.
1s“ Abide by the Law,” The Daily Age-Herald, December 8, 1888.

LE NOR MORE CO Te POA ANE 2S PE new Seth ete ee hd

ies of

PEIN REG BS

sentiaitis

i lato ele nia wd
.

eukenees

Nem Aa ty,

Iinnma P. Hawes, the wifg of Richard Hawes, whose body was
recovered from the lake at Lakeview Park, Highlands, Alabama,
along with that of her younger daughter Irene. From Goldsmith
BB. West, The Hawes Horror and Bloody Riot at Birmingham: A
Truthful Story of What Happened (Birmingham, Alabama: The
Caldwell Printing Co., 1888).

filed for a divorce, but that legal action had never been
completed. Hawes’ explanations as to the supposed
whereabouts of his first wife produced nothing except
the confirmation that he and the truth seemed to be
strangers. Emma Hawes and Irene, tk» second daugh-
ter, remained missing.'3

Despite mounting evidence to the contrary, the ac-
cused maintained his innocence. On the morning of
the seventh, the coroner’s jury questioned the dis-
traught and bewildered bride, and she disclosed the
contents of a note Hawes had sent her. The following
is the only private record of the accused during his
period of incarceration at the Twenty-first Street jail:

My Darling Mayes:

What can I say to you for the terrible trouble I
have got into. I know how independent you are and
only blame myself for not telling you all. For God's
sake do not think I am guilty of this terrible thing;

The Daily Age-Herald, December 6, 7, and 8, 1888.

20

AERA SRT id BUN opt 85s II Ns yng” be enti TRIER 6 7S i aR Cigale eA Ree :
Piece Ni ebick Meares Manhtorseae e aR Sar ees ao wy pie : Riad

iry and judge me as light as you can. I loved you so
I was afraid to tell you about her. I knew you would
nol have to be troubled with her as she would be in
a convent. Don’t believe anything you see in the
papers, as not one-half is true. Let me know what
you are going to do to me, this eve. This terrible
suspense is just killing me. I don’t think I can stand
it much longer. Oh, my darling, if you only knew
you could not censure me too severe, for it will prove
out all right. Your broken hearted and most miser-
able one, ‘

Richard'4

This, and the rest of the inquest testimony was pub-
lished in the Age-Herald on the moming of the 8th,
which, as on the 7th, devoted all six front page columns
to the “terrible mystery.”

The possibility of mob action by the more aroused
citizens of the Jefferson County area grew in propor-
tion to the acceptance of rumor as fact. A militia offi-
cer and amateur historian of the day, Major Goldsmith
B. West, produced a popular account of the entire in-
cident by summarizing the Age-Herald’s day-to-day
reporting of that December’s events. In his account,
entitled The Hawes Horror and Bloody Riot at Bir-
mingham: A Truthful Story of What Happened (Age-
Herald editorials on the murder were also entitled
“The Hawes Horror’), West was of the opinion that
even citizens of a usually quiet demeanor were seen
clustering about the sidewalks on Friday evening. The
main topic of conversation seemed to be the location
of the bodies of Emma Hawes and Irene, both of whem
were supposed dead by the general populace. ‘There
seemed to be a consensus of opinion uniting all classes
that such a discovery would settle the matter, and...
there were suggestions that certain elements of society
were only waiting for some such final conclusive de-
velopment to take the law in their own hands, or at any
rate, make an attempt of that kind.’’5

Political circumstance in Birmingham that Decem-
ber afforded the town little likelihood that it would be
prepared to handle mob violence. Perhaps the two
most important officials, the mayor and the sheriff,
were men who had held those positions only since the
previous August. Thus each man brought four months
experience to the task at hand. Mayor Thompson, per-
haps because of his inexperience, oftentimes hesitated
during the more critical moments of this explosive
week. He failed to follow the advice of professional
militiamen in the city until events forced him to do so.
The Sheriff of Jefferson County, Joseph S. Smith, was
but thirty-five years of age. He had “the reputation of
being a man of determination, mettle, and nerve.’é
All his attributes were put to the severest test.

14“The End is Near,” The Daily Age-Herald, December 8, 1888.
15West, The Hawes Horror, p. 75.
\sIbid., p. 101.

Z yay :

the mayor for his reluctance to act, that is exactly what
he did: “It does not matter that in the opinion of the
narrator and other officers and citizens, bloodshed
would have been certainly avoided by a course differ-
ent to that which was adopted. The Sheriff and the
Mayor were the responsible persons in the matter.’’24

Entrance to the new jail on Twenty-first Street be-
tween Third and Fourth Avenues, North could be had
only by passing up a blind alley that extended from
Twenty-first Street. For his part, Sheriff Smith had
also chosen to forego a call to the militia, instead
swearing in several additional special deputies, until
the number of armed guards at the jail that Saturday
night numbered about forty. They were placed in the
alley near the street end, in the windows of both the
old and new jail which commanded the alley, in the
half-constructed courthouse, and on the roof of the jail.

The genesis of the mob that finally attacked the jail
cannot be pinpointed. There were knots and crowds
of people on most corners, in saloons, and at every
meeting place. A crowd of 150 to 200 people had as-
sembled at the gas works (Thirteenth Street and Third
Avenue, North) and another of equal size at the Flor-
ence Hotel and the public fountain (Nineteenth Street
and Second Avenue, North). Every rolling mill was
credited as the source of rumors of a dynamite cache.
By 10 o’clock in the evening, a mass of humanity,
filled more by alcohol than by thoughts of revenge,25
surged down Second Avenue, North in the direction of
the jail, engulfing smaller crowds as it passed and
swelling its size ever larger. Others pressed down
Nineteenth and Twentieth Streets and up Third Ave-
nue, North, with all the disparate groups joining at
the corner of Twenty-first Street and Fourth Avenue,
North, a crowd of some 2,000 located directly in front
of the jail. The mayor, prominent members of the local
militia, and a few peaceful-minded citizens mingled
with the rabble and tried to allay their collective fury.
But they were few in number, and the tumult swarmed
around them and carried them with it.

As the crowd began pressing itself into the narrow
passageway leading to the jail, Sheriff Smith, standing
at the back of the alley, gave two counted warnings to
cease and desist, or else he would shoot. When the
second order went unheeded, the order to “Fire’’ was
given, and a fusillade of forty guns rang out, and then
another. There were a few answering shois from the
mob, but most stood immobilized for a moment of
stunned silence, and then retreated madly down the
narrow confines of the alley in order to escape further
bloodshed. Left behind were the bodies of eleven dead
or dying men, with some twenty to twenty-five
wounded. The popular anger against Dick Hawes was
momentarily forgotten, and replaced with cries ‘of
“Hang Smith.” At this point, the sheriff finally called

24West, The Hawes Horror, p. 107.
25Ibid., pp. 105-112.

A pencil sketch of Joseph S. Smith, Sheriff of Jefferson County,
Alabama. From The Weekly Age-Herald, March 5, 1890, p. 1.

for the local units of the militia. Three units, the
Jefferson Volunteers, the Rifles, and the Guards, an-
swered the call. All were badly undermanned, but with
bayonets in place, the streets were quickly cleared.
These units remained on duty until Sunday morning,
when details from other areas of the state relicved
them.

Under the Sunday morning headline “Blood anc
Death,” the Age-Herald recorded “the most terrible
tragedy which has ever occurred in the city of Birming-
ham.’ Yet even the painful series of events which
were recorded on the front page did not leaven the
terrible justice meted out to Hawes on the editorial
page. The guilt of the accused was even more firmly
fixed in the eyes of these amateur magistrates follow-
ing the discovery of the body of Emma Hawes. Various
scenarios of what could or might have happened re-
garding the death of Mrs. Hawes and her two daugh-
ters were recounted as what “must” have happened.
The conclusion of the editors that “he and no other is
the man who did this murderous work” was based on
totally circumstantial evidence, the admissibility of
which had as yet not been determined by any legal
process. Hawes was defined as a “fiend compared to
whom Tago was a saint and Mephistopheles an angel
of light.”"7 The newspaper had tried, convicted, and
“Blood and Death,” The Daily Age-Herald, December 9, 1888.

“The Hawes Horror,” The Daily Age-Herald, December ©,
1883.

fj

Py

they knew that a heartless killer had been
at work. Around the girl’s slender waist
was fastened a length of chain. Her face,
purpled by exposure to the icy water,
had been brutally beaten. The men hur-
ried back to shore with their pitiful bur-
den and summoned Joe Smith, sheriff of
Jefferson county. Chief of Police A. O.
Pickard and Coroner R. G. Babbitt.

They took the body to the morgue
where Dr. Babbitt made a hurried pre-
liminary examination. He ran trained
fingers over the bruised and broken scalp
and pointed to purple splotches on all
parts of the child’s body.

“The work of a madman,” he an-
nounced. “She was savagely mutilated.”

Turning to the grim county and city
‘officers who stood silently about him, the
coroner continued :

Sheriff Joseph (Little Joe) Smith,
shown at the left, gave the order to
fire on a lynch mob, resulting in the
death of 11 citizens. At the right is
an old-time newspaper picture of
Mrs. Emma Hawes, whose brutally
mutilated body was found in Lake-

view Park, Birmingham.

“This little girl was dead before her
body was placed in the lake. Her lungs
contain no water. She was killed by
some fiend who beat her unmercifully on
the head and body with a blunt instru-
ment.”

The announcement electrified the offi-
cers into action. Police Chief Pickard
declared, “We must get this killer be-
fore he strikes again. Other lives may
be at stake.”

Uniformed police men and deputies
swarmed to the lake, desperately seeking
a clue to the mad slayer. At the same
time they sought to establish the child’s
identity. Their meager lead was the
length of chain that had weighted the
body. They searched the lake front
thoroughly for similar links, but none
was found. Neither was the murder

By
JACK
KYTLE

_ weapon: Sheriff Smith ordered a sweep-
ing search of the dense woods surround-

ing the water and a check on all nearby
residents. He did not believe the child
was murdered at the lake. He advanced
a theory that she had been slain else-
where and that her body brought from a
a considerable distance.

The first promise of a break came when
a family at Anniston, Ala., 60 miles east
of Birmingham, told police their 13-year-
old daughter was missing. The child’s
mother was rushed to the morgue where
she looked for a long moment upon the
beaten girl in the casket.

“No,” she said finally, “that’s not my
child.”

Mystery wrapped its cloak more tightly
about the case. Thousands filed by the
casket. They came by horse and buggy

39


A $3 Sith Se :

ee eee

att AMAR i AACE AS RERES

A huge mob milled around the Jefferson county courthouse, above, and
attempted to lynch the cold-blooded triple killer. After the crowd was
repulsed with a terrific loss of life, the slayer died on the gallows at the
spot now occupied by filling station, shown at left, behind courthouse.

and train. Some wept. Others cried for
joy upon discovering the child was not
their own. But none had ever seen her.
The investigators scanned missing per-
sons reports and wired police in nearby
states. Their efforts were fruitless.

Chief Pickard believed, judging by the
child’s mutilated body, that she had fallen
into the hands of a sex fiend. He ordered
an investigation into the recent where-
abouts of known criminals and degen-
erates,

Birmingham was a young city. Steel
workers and coal miners had poured into
her gates from all parts of the nation.
Among them were vicious men, capable
of committing the most ghastly of crimes.

Pursuing the sex fiend theory, doctors
again examined the body. Their finding
was a blow to investigators. The child
had not been attacked.

Complete failure appeared at hand.
Officers continued the systematic search
around the lake, questioning every one

40

who lived in the vicinity. But they

learned that no strange persons had been -

seen in the densely-wooded neighbor-
hood.

Then came the sudden break. Among
the thousands filing through the morgue
was Pearl Smith, aged Negro woman.
She glanced into the casket and then
raised her hands above her head.

“T knows dis chile” she cried.

The long line halted as Dr. Babbitt
was summoned. When he arrived the
woman told him that the slain girl was
May Hawes, daughter of Richard R.
Hawes, engineer of the Georgia-Pacific
Railroad.

Word of the identification was rushed
to Sheriff Smith. He immediately led a
squad of officers to the handsome Hawes
residence on what is now Chestnut Hill.
The home was about two miles from the
lake.

A knock at the door brought no re-
sponse. The officers shouted but were

answered by silence. They forced their
way into the ghostly-quiet house and
halted in their tracks, aghast at what they
found.

Wild disorder was everywhere. Dark
splotches of blood covered the floors.
Furniture was wrecked and the wallpaper
badly scarred. All indications pointed
to a death struggle.

Smith turned to one of his deputies.

“This is wholesale murder,” he said.
“We've only started!”

It was a dark and accurate prophecy.

The Hawes home was isolated from
other residences. Thick trees on all sides
offered a perfect shield for murder. It
was reasoned that a: slayer could stalk
there and commit his foul deeds with
little fear of detection.

A. seareh was started now for other
bodies. The Hawes family, he learned,
consisted of Mr. and Mrs. Hawes and
two daughters, May, 14, and Irene, 8.

Neighbors of the little family, all of
whom lived a considerable distance from
the murder house, were horrified. Mr.
and Mrs. Hawes were popular in the
neighborhood and had taken a leading
part in East Lake society. They were
not the type of people to have enemies.

Close friends of Hawes told officers
that he often kept considerable sums of
money in the house. This new informa-
tion was seized upon immediately. Rob-
bery loomed clearly as the motive.

Lake Dragged For Bodies

HE investigators turned again to the

dark waters of East Lake. For hours
they dragged the bottom but no bodies
were found. Another search of the house
and grounds also failed to reveal new
clues,

Had the killer removed the ghastly
evidence with slow, calculating thorough-
ness? Had he secreted the bodies in
widely-separated areas? Smith and Pick-
ard believed he had. The officers re-
newed their deliberate questioning of
neighbors. This time they found the lead.
Albert Moffett, a neighbor who had been
unable to recall any helpful incident when
first questioned, now dipped back into his
memory and emerged with startling in-
formation.

He said that a few days before the
child’s body was found he had seen two
Negroes, a man and woman, prowling
about the Hawes residence. The man
was walking among the trees as if search-
ing for something. The woman was gath-
ering lengths of chain and lumps of rail-
road iron. ‘The chains, he said, were
identical with the one found wrapped
about the body.

With this new information, arrests
came swiftly. Albert Patterson and Fanny
Bryant, Negroes who had been employed
for odd jobs at the Hawes home, were
arrested and taken to the Jefferson
county jail. They were identified by
Moffett as the couple he had seen prowl-
ing about the yards.

Smith placed them in cells and ques-
tioned them vigorously. Patterson de-
clared his innocence, protesting over and
over again:


trom
In the
ughlin
tallion
head
ening
to the
vas in
junger
loole
Once
itive’s
This
hands
with-

trailed
ed tor
custed
1 him
fight.
hands
ange-
Judge

3srief
le de-
lin to
squad
to the
i the
snow
ceived

itrick
leak,
wn of

Randolf. Twenty-five paces from the con-
demned man was a tent in which five
picked riflemen were hidden. Each marks-
man stood before a slit that had been cut
in the tent wall.

Grey skies held an ominous threat of
immediate snow. The ground was white
where the solemn group of horsemen,
official witnesses to this unusual civil ex-
ecution, stood beside their mounts, quiet-
ing them in expectation of the rifle shots.

Sheriff Dickson walked to the chair and
pulled a black hood over the condemned
man’s head. To Coughlin’s shirt he pinned
a square of white paper with a black bull’s
eye marked in the center, directly over
the heart. The sheriff walked back to the
tent and stood beside the flap.

“One rifle is loaded with a ball, the
others with blanks,” he informed the five
hidden members of the firing squad. Then
he raised his voice, “Ready. Aim.” The

witnesses stood taut beside their mounts,
gripping reins firmly close to the bits.

“Tire,” the sheriff's voice was lost in
the crack of the carbines.

Patrick Coughlin shuddered as if a bat-
tering ram had struck him. His legs stif-
fened in the thongs that bound them.
Slowly, very slowly, his body relaxed and
his chin fell to his chest. His neck had
suddenly turned to water.

Fred George was a harmless “model”
prisoner in the Utah penitentiary for more
than a decade. He was paroled later and
went to Park City to live a well ordered’
life of toil. He never talked of his ex-
periences in crime until, shortly before his
death a few years ago, he told his story
in full detail.

He did not talk proudly then. He talked
slowly and heavily, painfully supplying
a bizarre chapter to the story of the
taming of the West.

Crimson Sequel of Alabama’s Triple
Death Riddle

[Continued from page 41]

he was not the faithful husband pictured
by neighbors; that he was dashing and
handsome and had a way with women.
This popularity among the opposite sex
caused friends to call him “Handsome
Dick.” F

Smith knew he could not suspect a
man merely because he was handsome.
For every questionable trait in Hawes’
character, he found a good one. The
engineer adored his two children, had
always been a good provider and, as a
friend declared, was a man “with char-
acter beyond reproach.”

The sheriff placed his questions care-
fully and finally concluded he was on the
wrong track. But he was a staunch ad-
vocate of thoroughness. Officers were
dispatched to ascertain whether the
crigineer was “out on arun.” They found
that he was not and. that he had not
made a run the day before.

Then, as events seemed to be at an-
other standstill, a single chance remark
exploded. a new bombshell in the case.
An acquaintance of the engineer laugh-
ingly remarked to Smith:

“Dick was pretty sweet on a girl over |

in Columbus, Miss.”

Startling Revelation

HAT remark was enough. The sheriff
wired Mississippi officers and asked
them to check on whether Hawes had
been there.
Before the day ended he learned three
startling things:

Hawes had been in Columbus. He had .

married a girl there and at the moment
was on a train speeding between Colum-
bus and Birmingham en route to Atlanta!

The sheriff summoned deputies and
informed Police Chief Pickard of what
he had learned. That night a grim band
of officers boarded the train from Colum-
bus as it paused in Birmingham. Hand-
some, neatly-dressed Richard R. Hawes
anda beautiful young woman were taken
from the coach.

Shocked into hysterics, she said that
she had married Hawes that morn-
ing and that Hawes had told her he was
a widower. She said they were starting
on their honeymoon. Her face was a
mask of grief. Sobs racked her body

as handcuffs were linked about his
wrists.

Hawes was escorted under heavy guard
to the morgue where he was forced to
look upon his daughter's broken body. If
Smith expected the prisoner to show
great emotion, he was disappointed.
Tears welled into Hawes’ eyes but he
did not break down.

“Ves,” he said quietly, “that’s my little
girl.”

He was rushed from the morgue to
the new county jail. Questioned in the
sheriff's office, Hawes coolly told a story
that threatened to change the course of
the entire investigation.

Advances Suicide Theory

ALKING in a firm, even voice, the

handsome, arrogant prisoner main-
tained that he and his wife had obtained a
secret divorce. He said a substantial cash
settlement had been made to Mrs. Hawes
and that she had planned to place the
children in a Mobile convent. He ad-
vanced a theory that the mother, shaken
by the divorce action, probably had
killed the children and herself. He con-
cluded with the shocking prophecy:

“You'll find them all dead!”

Learning that the Negroes were being
held, Hawes suddenly changed his theory
and attempted to turn guilt upon them.
But even as he talked the blast thun-
dered that tore his theory of suicide
apart.

Late in the afternoon of December 8
a small group of deputies was searching
grounds about the murder house for new
evidence. They turned their attention to
a small strip of water in nearby Lake-
view Park. There, huddled half unclad
in a shallow part of the lake, was a
woman’s body. Closer. investigation
showed it to be that of Mrs. Hawes.
She had been bludgeoned savagely
about the head. Her arms were pin-
nioned to her sides. Wrapped about her
body were several lengths of chain,
weighted by lumps of scrap iron. The
deputies knew without a second glance
that this was no suicide. It was murder,
wanton and brutal.

When news of the gruesome discovery
spread, a spark that had slowly kindled

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sli _
ed their “Lord, help me, I’m telling the truth.
ise and I wouldn’t have harmed a hair of that
hat they girl’s pretty little head. I wouldn’t do
~ Dark a thing like that.
- ia He was obviously sincere and investi-
r saute gation subsequently cleared him of all
ae connection with the crime.
pointed But Fanny Bryant was nervous and
_ sullen. Smith pounded her with ques-
er tions. He pictured the grisly murder
he said, scene—the tortured body—the spirit of
— the child crying for revenge. The woman
7: threw her hands to her head, rocking
ed from backward and forward. She began sob-
all sides bing violently.
i 7 “Get it off your mind, Fanny,” the
eee sheriff pleaded. “Tell me the truth, Think
ds with of that little dead girl. If you don’t talk
her ghost will haunt you as long as you
or other live!”
learned, She began moaning and praying.
wes and Finally she blurted : ie
‘ne, 8. “T couldn’t help what I done!” f
y, all of ‘
ase i Woman Keeps Silent i
ed. Mr. }
ne ree AGERLY Smith pursued his advan- ;
ae 8 tage, hurling rapid-fire questions.
ios tl But she would say no more. She only
ae ine moaned and sobbed. ;
2 S of When the sheriff emerged from the
to “4 cell he told deputies, “They are confused
i P Rob. and their stories don’t stack up so well,
ye NOD- but I somehow believe the man is telling
ve. the truth. I don’t know about the woman.”
ox “But, Joe,” the officers reminded, “‘that
skinny little Negro woman couldn’t have
eee killed an entire family !” :
cs eas The sheriff looked at them silently. |
a hea “That's what worries me,” he said
he tsaad finally. “I think we'd better get busy.’
_ ; He walked back into his office straight
veal new
ghastly
horough-
yodies in
ind Pick-
ficers re-
oning of
| the lead.
had been
lent when

wy Re car

‘k into his a : aT

rope a \ pays
sitet ” = an ae ne —Photos by O. V. Hunt
vefore the = a 5 The body of May Hawes, 14, above, was thrown into a lake,
seen two aN weighted down with bits of scrap iron, by the Beau Brummel of
maar} = < Birmingham’s gay 80’s, shown at left from an old photo.
prowling Z ——
The man /
if search- into a sensational development. The dozen or more men con-
was gath- verged there were wildly excited, all attempting to talk at the same
ps of rail- ais time. But Smith did not wait to hear the finish of the garbled
said, were “ sg Poon vets a conversation. He grabbed his hat and rushed from the office.
wrapped ZB Se Richard Hawes was alive!
EE = —S—_— The missing husband and father had been seen on a down-
n, arrests GE. = town: street after the hour set as the probable time of the murder.
ind Fanny os : Ss 2S What was more, the informants declared, he appeared in good
employed => spirits.
ome, were The information caused a furore but Smith was wary. He
Jefferson OT ‘ believed it possible that Hawes had stayed in town after a railroad
ntified by eee ‘ - run and had gone on another without learning of the stark tragedy
zen prowl- Os ( — at his home. Still, the sheriff speculated, it was strange that
aM: ; he apparently had made no effort to get in touch with his family.
and ques- ‘ “ Lees ’ 7 Smith realized he was edging upon dynamite-laden ground but
terson de-. = bec fe he began a quiet check on the engineer. He discovered things
g over and RNG that made him wonder. Close friends of Hawes revealed that
fie [Continued on page 75]

41


deputy sheriff
crime and the
who worked on
the noose and
n the execution
ningham killers.

> of a respected
r, was missing
daughter's body

lake. Another
1 vanished: with
> had they gone?

nding my run?”
elf, man,” Smith
daughter May
Lake—murdered!
can’t raise any-
ise.”
eemed unable to
of the sheriff's

idea where your
ildren could be?”

' shook his head.
sly. “Little May
Let’s go to my

he railroad man
ind drove to 3117
leaped from the
front porch. He
oor and entered,
rt,
expected they
wr bodies in the
ong. However, the
The chairs were
urned, and there
everywhere.
itrol his emotions,
was shaking all
| down his cheeks.
oted to calm the
oned him. Hawes
had no known
e could not guess
of his family, or
otivated the mass
ones—for from the
ggle in the house,

"a

Richard Hawes, head of the ill-
fated family, was brought home
from a regular run with a train
to be told of the tragedy which
had struck his Birmingham home.

Two youthful fishermen hauled up
the corpse of May Hawes, 14, and
thus precipitated a crime investi-
gation which was to have one of
the bloodiest climaxes in all the
annals of crime in the U. S.

both men agreed that the wife and
other youngsters must also have been
slain. d

‘Did you keep a servant?” Little Joe
asked.

Hawes said he had none; his wife
preferred to do the housework by her-
self. , e

“How about a caretaker?”

“There was an old Negro named
Albert Patterson who ran errands for
Emma while I was gone, and took care
of the grounds. A kindly old man. I’m
sure... .”

“Nevertheless,” Joe said, “we’d bet-
ter talk to him.”

Public rage mounted quickly over
the atrocity in Avenue G. Birmingham
in those days was a roisterous town;
quarrels and even shootings were not
uncommon in its roaring downtown
district, but the attack upon a defense-
less woman and her children aroused
violent anger in the hearts of the city’s
residents. There was quick, earnest
talk of a necktie party for the guilty
person.:

Little Joe knew he and Pickard
would have to work in as much secrecy
as possible, keeping all clues under
their big black hats. If an angry mob
got hold of anyone even suspected of
the murders, there’d be an attempt at a
lynching for sure, and mob action was
something the sheriff meant to prevent
at any cost.

Several policemen and deputies, un-
der the direction of Deputies Dave

Mims and D,.H. Brown, were started

on a bell-ringing job in the Hawes’
neighborhood to see what information

they could pick up. Others were
assigned to help city firemen drag East
Lake for the bodies of Emma Hawes
and her other two children.

With their men scattered all over
the city working on the case, Sheriff
Smith and Chief Pickard made their
way to the shanty where Albert Patter-
son lived. The Negro was about 65
years old, stooped and friendly, as

Hawes had described him. However,

he didn’t like the looks of the officers,
and he showed it plainly.

“TJ ain’t done nothin’ wrong,” he said,
peering over the tops of his old horn-
rimmed spectacles. “What you-all
want?”

Son Is Safe

Little Joe soon calmed his fears, and
asked the old Negro what he had been
doing the day before, when presumably
Mrs. Hawes and her children had dis-
appeared.

Patterson told them he had been at
the Hawes home most of the day, work-
ing in the yard.

“What time did you leave the house
last evening?”

“About 6, suh.” ,

“Everything all right then?”

Patterson nodded.

“Who all was there?”

The old Negro named Mrs. Hawes,
May, and Irene. But not Jim. Jim had
gone to Atlanta on Sunday to visit his
uncle.

Then perhaps the son of the house
had escaped death. .But why had not
Hawes told them where the boy had
gone?

‘Joe qflizzed the engineer on_ that
point. Showing much surprise, Hawes
said he had not known of his son’s trip.
He had been away from home since
early Sunday morning, he said, and if
the lad had gone to Atlanta he had not
known of it.

1 : TRIPLE MURDER MYSTERY IN THE STARTLING NEWS OF A WEDDING

An exchange of wires to Atlanta
brought, at least, one ray of cheer. Jim
was alive and well. That was good,
but where were Mrs. Hawes and Irene?

Patterson was not arrested. He im-
pressed Sheriff Smith as having told
the truth. ;

Hope for a quick solution of the case
grew dimmer when firemen and officers
completed dragging:-East Lake and re-
ported that the bodies of Mrs. Hawes’
and her daughter were not there.

Then a_ strange light came_ into
Hawes’ eyes. Suddenly the father
jumped to his feet and ran like mad up
the long stairway leading to the second
floor of his home. Little Joe and Pack-
ard followed as fast as they could.

Hawes sped along the upstairs hall-

way and into a bedroom, then into a ©

big closet.

A moment later he came out. “It’s
gone,” he whispered brokenly. “The
$1,000 Emma and I had saved away.
It’s gone, stolen. Someone killed my
wife and darling girls—for that $1,000.”

He walked from the room like a man
in a dream, past showing emotion any
longer. The silent officers looked at
each other. That seemed to settle the
question of a motive for the crimes.

Leaving the engineer with some of

his many friends who had gathered to _
comfort him, and with the admonition

for him to rest if he could, the sheriff
and police chief went back to head-
quarters once more.

Past midnight now, it had been a
long and tiring day since Ben Culba-
son’s fishing hook had produced this
mystery. But there would be no rest
for the officers until they had exhausted
every possibility of finding the killer.

No sooner had they arrived at head-
quarters than Policeman S. F. Cun-
ningham, who had been leading the
force of officers checking the Hawes
neighborhood, burst into the office with
some sizzling news.

Fanny: Bryant, a colored woman
known to have worked occasionally for
Mrs. Hawes, had been seen walking
with young May Hawes to a store two
blocks from the Hawes home about 6
o’clock the evening of December 3.

“Have you talked with the Bryant
woman yet?” Little Joe demanded.

“No,” Cunningham said. “Didn't
want to till after I had seen you and
the chief.”

Patterson Implicated

Smith nodded and grabbed his hat.
“You and Pickard come with me. We'll
see what she has to say.”

Fanny Bryant was a small colored
woman with a pleasant face. About. 35
years old, she was as straight as a
*Bama pine tree. “What you-all want?”
she smiled.

Joe told her.

“I was down to Missus Hawes place
yesterday.” She spoke unhesitantly, and
went on to explain why she had been
there.

Mrs. Hawes (Continued on pari


mn a fishline,
ted hurriedly,
ground, and
it seemed in-
small man to
shivering. He
urned it over.
‘d behind him.
more than 14
oted. Across
ital slash, and
len and dis-
nted to dark

rusty stains on the white calico dress
she wore.

“Murdered,” he said crisply. “Beaten,
probably with a club, then chained
around the middle to something heavy,
and thrown into the lake here.”

He turned to John Keith and Ben
Culbason for their story of hooking the
body and bringing it to the surface
with a fishline.

“Can you show us just where you
caught on to her?” Smith asked.

The lads nodded. One of the depu-
ties, upon receiving the report of a
drowning from the man who had seen
the youths with the corpse, had brought
along grappling hooks, He and his
superior piled into the boat and, using
the boys as guides, rowed to the place
where they had been fishing, In a short
time they snagged a set of medium
weight chains with two heavy iron bars
attached.

Conductor Saw Her

The officers recognized the weights
as fishplates, two-foot lengths of metal
used in joining railroad rails together.
Little Joe ordered Deputy Andrew
Burgin to take charge of the chains
and fishplates, and then authorized re-
moval of the corpse downtown to the
morgue for examination by Coroner
R. G. Babbitt.

The other deputies and the city po-
licemen began searching the shore of
the lake, hopeful of picking up some
clue to the murder or at least to the
disposal of the body. The sheriff and
Chief Pickard stood watching as a
hearse lumbered up and the pathetic
figure was draped in a sheet and de-
posited in the horse-drawn van.

“Any idea who she could be?” Smith
queried.

“None,” Pickard replied. “We've had

no report of a missing girl in our office,

not in a long time.”

“She didn’t look like she’d been in
the water long. Maybe she ain’t been
missed yet.” The sheriff gazed reflec-
tively at the tiny station marking the

idea,” he mused, “that she might have

end of the streetcar line. “I got an


THE DOUGHTY LITTLE.

come out on the car. Maybe the con-
ductor would know her.” :

The searchers along the lake front
found nothing. Little Joe dispatched
Deputy Charles Schwend to the street-
car company’s office to obtain the ad-
dresses of the conductors on the High-
land Avenue line, which ran out to East
Lake—he knew there were only two
regulars—and then the rest of the group
returned downtown. Sheriff Smith
went straight to the morgue.

He waited there until Coroner Bab-
bitt completed his examination. That
official told him the girl had been killed
by a savage beating on the head, but
was not otherwise harmed.

“She was dead when thrown into the
lake, and death occurred about 12
hours ago.”

It was then 11 am. “Sometime be-
fore midnight last night, eh?” Smith
figured. “Can you fix up her face so
folks would recognize her?”

Babbitt nodded. “The undertaker’s
already at work.”

Schwend returned with the two ad-
dresses obtained from the streetcar
company. The sheriff saw that the
conductor on the car the night before
was R. M. Brown, and so he sent his
subordinate after the man. In less than
an hour the streetcar conductor, a

_ large, friendly fellow, was led into the

morgue.

He studied the battered features of
the girl for several moments. “Sure, I
remember her,” he said. “She rode out
on my car to East Lake quite often,
usually late in the afternoon. She
almost always had a book along.”

“Was she on your car last night?”

“She got on about 7 o’clock. It was
just after ’d had supper. There was a
man with her, a fellow maybe 35 or 40.
I’d never seen him before. I took him
to be her dad, -but I don’t why. He
had a dark handlebar mustache.”

That description was not in the least
helpful. Many men in those days wore
handlebar mustaches. “And he was
tall and slender,” Brown added. But
that was not very informative, either.

“Do you think you’d recognize him if
you saw him again?”

The conductor nodded. “I’m sure of

. it. And there’s one other thing that

just came to me. Sometimes this girl
got on the car with other girls. I think
I remember hearing them call her
‘May.’ ” :

By noon there had been no report of
a missing girl at either the sheriff's
office or police headquarters. In mid-
afternoon the newspaper came out with
a boldly headlined account of the grue-
some murder, and with it an invitation
from the sheriff for residents of the city
to view the remains at the morgue in
an effort to identify the victim.

A great many people came in to look
at the girl, but no one recognized her.

Finally the break came. A Negro
woman peered into the open casket,
then drew back, quaking and scarcely

_able to speak. With difficulty, at last

ALABAMA SHERIFF READ THE TIPOFF TO A

“I know dat

she got out a few words.
chile,” she gasped. “She’s Massa Hawes
li'l gal May. . I usta work for them.”
Babbitt and Joe stared at each other.
Both knew Richard R. Hawes as a well-

respected man, handsome, tall and
slender. For years he had been an
engineer on the Georgia Pacific rail-
road, making a run from Atlanta to
Greenville, Miss.

Little Joe nodded to Chief Pickard,
and in a few moments they were on
their horses, riding like fury out to

3117 Avenue G where the engineer and

his family resided.

Hawes lived with his charming wife
Emma and their three children—May,
the eldest; a son named Jim; and an-
other daughter Irene, just 8 years old.

The big white house was silent when
the two officers arrived. The doors
were closed and locked. The sheriff
knocked repeatedly on the front door,
but got no answer.

Father Brought Home

“Shall we break in?” Pickard sug-
gested. “I’ve a hunch there’s some-
thing further wrong here.”

Smith shook his head. “Let’s go
down and try to contact Hawes at the
Georgia Pacific depot.”

They found that the engineer was
then making the return trip from
Greenville, and was due in Columbus
—about 75 miles west of Birming-
ham—in 30 minutes. He usually made
a stopover in Columbus, but the sheriff
instructed the telegraph operator to
send him orders to come on into Bir-
mingham. ,

Several hours later Little Joe faced
Dick Hawes as the engineer climbed
down to the station platform at the
Birmingham depot.

“Where is your family?” the officer
asked.

“Why, at home of course,’ Hawes
replied. “What’s wrong, sheriff? Why
was I ordered to come on in to Bir-

Charles Schwend, .deputy sheriff
at the time of the crime and the
only officer alive who worked on
the case, exhibits the noose and
black hood used in the execution
of one of the Birmingham killers.

Emma Hawes, wife of a respected

railroad engineer, was missing
after her elder daughter's body
was taken from a lake. Another
daughter also had vanished with
her mother. Where had they gone?

mingham instead of ending my run?”

“Get a grip on yourself, man,” Smith
warned him. “Your daughter May
was found in East Lake—murdered!
And what’s more, we can’t raise any-
body else at your house.”

Hawes paled. He seemed unable to
grasp the meaning of the sheriff's
words.

“Do you have any idea where your

. wife and the other children could be?”

Little Joe asked.

The engineer slowly shook his head.
“No,” he said tonelessly. “Little May
murdered, you say? Let’s go to my
home at once.” :

Sheriff Smith led the railroad man
to a waiting carriage, and drove to 3117
Avenue G. Hawes leaped from the
vehicle and ran to his front porch. He
unlocked the front door and entered,
followed by the officer.

Smith confidently expected they
would find three other bodies in the
house, but he was wrong. However, the
place was a shambles. The chairs were
broken, tables overturned, and there
was blood splattered .everywhere.

Hawes tried to control his emotions,
but could not. He was shakimg all
over, and tears rolled down his cheeks.

The sheriff attempted to calm the
man while he questioned him. Hawes
protested that he’d had no known
enemies, and said he could not guess
the fate of the rest of his family, or
what could have motivated the mass
murder of his loved ones—for from the
evidence of the struggle in the house,

ce

RR EE ee

TRIPLE

Richard Hav
fated family,
from a regu
to be told «
had struck h

Two youthful
the corpse of
thus precipitc
gation which
the bloodiest

annals of c

both men ag
other youngs
slain.
“Did you k
asked.
Hawes saic
preferred to «
self.
“How abou
“There wa
Albert Patte:
Emma while
of the ground
sure... .”
“Neverthe
ter talk to hi
Public rag
the atrocity i
in those day
quarrels and
uncommon »
district, but ‘
less woman
violent ange
residents. 1]
talk of a ne
person.
Little Joc
would have |
as possible,
their big bla
got hold of
the murders.
lynching for
something tl
at any cost.
Several pc
der the dir
Mims and I


BRIDEGROOM

(Continued from page 19)

had called her on Monday morning and
asked Mrs. Bryant to help her in the
afternoon. She had been at the home from
noon to “can’t see,” meaning until after
dark. That would have been shortly after
6 o'clock.

“And what did you do then?” Joe asked,
rubbing his chin thoughtfully.

“Ah went home.”

“Had Albert Patterson left yet?”

““Uh—yas suh. He left fust.”

-Then Fanny Bryant was the last one to
be at the Hawes home the night of the
murder. Significantly, she had not men-
tioned the evening walk with May which
Cunningham had reported. .

Little Joe decided to arrest her until
they could check up on her story.

Fanny made no objection. “Just as you-
all say, suh.”

Deputies S. R. Truss and Will Love
were directed to continue their question-
ing of the woman, while Policeman Joe
M. Nix was sent out to find out what he
could about her personal history.

The hours dragged on, and the sheriff
was becoming discouraged. There was
still no report on the whereabouts of Mrs.
Hawes and Irene. No trace had been
found of their bodies, though an intensive
search for them was being conducted.

Then came what appeared to be the
initial break in the probe. Deputies Bur-
gin, Williams and Thompson, who had been
investigating the chains and iron plates
which had anchored the body of May
Hawes in East Lake, brought in the
news.

At the Georgia Pacific railroad shops in
the Avondale addition, a yard foreman
remembered seeing a Negro pick up some
old fishplates from the, railroad junkpile
the Sunday afternoon before three mem-
bers of the Hawes family disappeared on
Monday.

“From the description he gave me,”
Deputy Burgin said, “I figured it was
Albert Patterson he was talking about, so
I got him and took him down to the yard
foreman. Patterson was the one, all
right.”

A look of hope stole across Little Joe’s
face. It seerned they were getting some-
where at last. “Where is Patterson now?”

“One of our boys has him down at the
railroad yards. He won't admit a thing.
We were afraid to bring him up here until
it got dark because of that mob—it’s get-
ting worse all the time.”

Joe nodded his approval. He telephoned
Conductor Brown, asked him to come
down to the jail that night. Then Joe rode
out to the Hawes home as fast as he could.
He wanted to get some more information
from the engineer about his caretaker.

To Smith’s surprise, Hawes was not at
home. ‘The house was locked, but no one
in the neighborhood had seen him leave.
Joe went down to the Georgia Pacific
depot, and asked W. J. Parrish, superin-
tendent of the railway, if he knew where
the engineer was. He didn’t, but sug-
gested that‘ the sheriff ask the dispatcher.

Joe went to the dispatcher’s office, grow-
ing more puzzled by the minute. Surely
Hawes had not gone out on his regular
run; he had seemed so upset that he was
in no condition to handle a train. ;

The dispatcher looked up quizzically
from his desk as the sheriff questioned
him about Hawes. - ~

“No, he ain’t working today. But I did
see him; he was in here this morning. Said
he was going to Columbus +to take care of
some very important business.”

Little Joe frowned. “Did he say what
kind of business it was?”

The dispatcher shook his head. “Nope.
He didn’t tell me, and I didn’t ask. I don’t
suppose I should say so, but—well, he acted
mighty pert for.a man with his wife and
children not dead three days.”

Sheriff Smith considered this statement
for a moment. Hawes had seemed any-
thing but pert when the sheriff last saw
him. ' What business could be so important
as to take him away from Birmingham at
such a time as this?

Strange News

“Did Hawes say when he’d be back?”
the sheriff asked.

“Well, I don’t believe he said for sure,
but he did mention he might come in on
the evening train if things worked out
right.” :

Suddenly Joe had an idea. “Could you
wire the dispatcher at Columbus and find
out for me if he knows what Hawes is
doing there, and when he will be back?
We need him up at headquarters.” -

“Sure thing,” the railroad official said,
and turned back to his telegrapher’s key.
For a few minutes the little room was alive
with the chatter of the instrument, and the
dispatcher made rapid notes on a pad.

“Well?” Smith asked when the key was
silent at last.

The man looked up at Little Joe. “I don’t .

suppose I should say so,” he began, “but
I ain’t very surprised.”

“Surprised? Surprised at what? Tell
me what’s going on, quick!”

-“The dispatcher at Columbus says
‘Handsome Dick,’ as they call him down
there, married a woman named Maye
Storey, about 3 o’clock this afternoon.
They’re on the train for Atlanta. It'll be
through here in a couple of hours. I guess
they don’t know him very well down
there, don’t know he was married and all
that, and had a family.”

Smith was so taken aback that he
couldn’t speak for a minute. Finally he got
his Sranh. “Well, I'll be damned!” was
all he could mutter.

With brief thanks to the dispatcher for
his help, Little Joe Smith strode out of the
office, his mind awhirl. It was difficult to
credit the report he had received of Dick
Hawes’ marrying another woman only the
day after his little daughter’s body had
been found, a murderer’s victim, and while
his wife and other daughter still were the
objects of a police search.

If the report was true, it could add up

BITS OF CARELESS TALK

ARE PIECED TOGETHER BY THE ENEMY

to only one thing. The sheriff sought out
Parrish, the railroad superintendent, and
laid plans to board the train to seek the
engineer and his bride when it stopped in
Birmingham.

The Georgia Pacific flyer steamed into
Birmingham on schedule. Smith and Par-
rish went aboard. Dick Hawes was sitting
in one coach seat with a young woman, a
very pretty girl, the sheriff observed.
However, he addressed only the engineer.

“There are some new developments in
your daughter’s murder,” he said abruptly.
“You'll have to leave the train and talk
with us about them.”

If Hawes suspected what was up he
gave no sign of it. He arose and took the
young woman’s arm. “Come along, honey,”
he. said.

He stepped aside to allow her to precede
him down the aisle. Parrish led the proces-
sion, followed by the girl, then Handsome
Dick Hawes, with Sheriff Smith in the
van. As they came to the steps Little Joe
quickly snapped handcuffs on the mus-
tachioed engineer.

“What—what’s the meaning of this?”
Hawes sputtered. On the platform below
stood the black-haired beauty transfixed
with fear as she saw the steel bracelets on
her new groom’s wrist. Smith shoved the
engineer quickly along to Parrish’s office.

Once there, Hawes made a great show
of indignation. “I demand to know what
you mean by this action,” he roared.

Bride Tells Story

“You can quit playacting now, Hand-
some Dick,” said Sheriff Smith. “You are
going to jail.” '

“But I can’t!” the engineer protested. “I
have to go to Atlanta.” —

Little Joe regarded him stonily. “That
can wait,” he said. “It will wait a long
time, I’m thinking. Where are the bodies
of your wife and little Irene?”

“{—I don’t know what you're talking
about,” Hawes whimpered. “You’re mak-
ing an awful mistake.”

He was led away to a cell without
further questioning. Smith took the girl,
Maye Storey Hawes, to his office for inter-
rogation.

She said she and Hawes had been mar-
ried that afternoon. “I won’t believe this
of him,” she declared. “It can’t be true!
Dick’s too sweet and kind to even. think
of such a thing.”

However, Maye Storey Hawes told the
sheriff, Dick had informed her his wife
had been dead for some time. She said her
mother operated a rooming house in
Columbus, Miss., across the street from the
railroad depot. When he laid over in
Columbus on his train runs, Handsome
Dick stayed at Mrs. Storey’s place. It was
there he’d met Maye, to whom he de-
scribed himself as a widower with one
son, who lived with an aunt and uncle
in Atlanta.

The handsome engineer's personality, his
dashing manner and tempestuous court-
ship, had won Maye’s promise to wed him.

“That’s my story,” she said. “I still love
him. Oh, this is some monstrous joke,
isn’t it? Tell me it’s not true.”

However, it was. The girl collapsed and
had to be taken to a hospital. The officers
were satisfied that she had been cruelly
victimized by a scoundrel who had slain
his wife and two daughters, and then
callously carried out his wedding plans
with an innocent * istry lady.

He was charged with first degree mur-
der, despite the fact that he angrily as-
serted his innocence.

“You don’t have one thing against me,”
he snarled at the sheriff. “You told me
yourself you were certain that Emma was
dead. Why shouldn’t I marry again if my
wife is dead?”

“I was never
now that she is ¢
his’ voice like a
sure that you !
positive when Co

Brown that nig
and pointed his
“He’s the man w
East Lake Mond
never forget his

The officers wi
for the bodies o!
were. at last suc
lake at Lakevie:
bodies. Chains
weighted them
brutally beaten «

Little Joe trie:
the fact that Hav
der, but secrets
Within 24 hours
entire city. Th:
finding of the tv
lake, inflamed r
ominous pitch.
seemed little pe

Then Policem
information in
Hawes had tol
had been seen |
about midnight

Little Joe co:
with this staten
she told the wh

Hawes had ta

He and she con

Handsome Dic!

to bring the iro

yards. The «
nothing of the

Hawes feigne
ber 3, got a sub
told his superio

in’ Columbus t«

to Birmingham

Fanny took |

at about 6 0%

into the hous:

Irene. When

met May at tt

they go to Ea

Lyn:

There he sl
body in the |:
house, and lat
Bryant carrie
Irene to Lakev
in the water.
Hawes returne

Albert Patte
eral days, bu
the crimes, an
innocence. H:

First degree
against the |
Ao those agai

When the
reached the p
indignation a:
accomplice m
storm. With
feared seriou:

On Sunday
brought him
collecting anc

It was up
Would he d
even at the }
would-be ly:
officers, the li
and Fanny
ropes that v
was at stake
and Smith k

the end.

“Even a s
trial,” he to
we sit back ;

out using e\

vent it, the

JU4 SOUTHERN REPORTER, Von. 7.

with the return of the officiating minister,
which is certified by J. T. Armstrong, clerk
and notary public. The license was issued
on December 5tu, and the minister’s return
stated that the marriage was celebrated
ou that day. The certificate of the clerk
was in these words: “J, J. T. Armstrony,
clerk of the circuit court in and for said
county, [Lowndes,] and ex officioa notary
public, certify that the above and annexed
pages contain a true and perfect copy of
the original affidavit, bond, marriage
license, and official certificate of minister,
as the same appears of record in my office.
Witness my hand and seal,” ete. Defend-
ant objected to the admission of this tran-
script as evidence, “as being irrelevant, il-
legal, and incompetent,” and excepted to
the overruling of his objection. The pros-
ecution ofiered in evidence, also, in this
connection, the Revised Code of Mississippi
of 1880 which purports on its face to be
published by authority of the state, and
which was admitted to be “the last Code
of that state,” and particularly sections
1148, 1149, and 1492, as therein contained.
These two former sections relate to the is-
sue and return of marriage licenses, and
the last section (1492) makes the clerk of
the circuit court “the legal custodian of
the records and papers relating to mar-
riage licenses and certificates of marriage. ”
Defendant objected to the admission of
this Code as evidence, and duly excepted
to the overruling by the court of his objcc-
tion.

J. T. Glover was introduced as a witness
for the state, and testified that he was
confidential clerk, in the office of Hewitt,
Walker & Porter; that he knew defendant,
and first saw him earlyinSeptember; that
Hawes came into the office, and asked him
if he was a lawyer, and he answered that
be was not; and that Hawes said that
the object of his visit was to get a divorce.
Defendant objected to any evidence by said
Glover, showing any conversation between
him and witness concerning a divorce pro-
ceeding, because witness was a confiden-
tial clerk of the law firm whom defendant
went to consult; but the court overruled
this objection, and defendant excepted.
The witness continued: “Hawes said he
wanted a divorce as soon as he could get
it.” Nothing was said to him by Hawes
about where his wife was, but he did say
that he had instituted proceedings of di-
vorce in Atlanta two or three years ago,
and wanted to know if they could be con.
tinued here. Defendant then moved the
court to exclude from the jury “the whole
of the testimony of this witness, on the
ground that it was a privileged and confi-
dential mission,” and he excepted to the
overruling of this motion.

J. I. Glover, a witness for the defense,
testified, on cross-examination: “I have
heard for the last few years that he [de-
fendant] frequently had difficulties with
and struck his wife.” Defendant objected
to the introduction of this last statement
as evidence, and excepted to the court’s
overruling his objection.

The court thus charged the jury as to
the different degrees of felonious homicide:
“There are four degrees of felonious hoini-
cide,—murder in the first degree, murder in

(Ala.

the second degree, manslaughter in the first
degree, and manslaughter in the second
degree. Murder in the first degree is any
willful, deliberate, malicious, and pre-
meditated killing ofa humairbeing. ‘ Will-
ful’ means governed by the will: without
yielding to reason. ‘Deliberate’ means
formed with deliberation, in contradistine-
tion to a sudden, rash aet. ‘Malicious’
means With fixed hate, or done with inten-
tions or motives, not the result of sud-
den passion, ‘Premeditated’ means eon-
trived or designed previously. The law
fixes no particular leneth of time these ele-
ments shall be shown to have existed in
the mind. If they co-exist but a moment
before, and prompt the fatal act. it is suffi-
cient. There must have been a previously
formed purpose to take the life of the per-
son slain, and death must be the result of
the voluntary, intentional employment of
means calculated to produce it. Murder
in the sccond degree is the unlawful and
malicious killing of a human being. The
distinction between the two degrees of
murder is the deliberation and premedita-
tion which characterizes murder in the first
degree. Manslaughter is the unlawful
killing of a human being, without malice,
either express or implied. You will ob-
serve that in manslaughter the ingredient
of malice is wanting. Manslaughter, by
voluntarily depriving a human being of
life, is manslaughter in the first degree;
and manslaughter committed under any
other circumstances is raanslaughter in the
second degree. ”

Defendant excepted to this part of
the charge given by the court, and he also
excepted to the following portions: “(1)
The state claims that the deceased came to
her death on Monday night, December 3,
1888; that the defendant was seen that
night at the house of Fannie Bryant, [a
negro woman who was implicated in the
murders, was indicted, tricd, convicted,
and sentenced to the penitentiary for life,
after the trial of this case,] where he called
for the deceased, and went in the direction
of the dummy; that a few minutes after
wards they boarded the Highland avenue
dummy to Lake View, a short distance
from Fannie Bryant’s house, and came on
the dummy to this city, [Birmingham,]
and were seen to get off; that a short time
afterwards, on the same night, they were
seen on the Kast Lake dummy line, travel-
ing in the direction of East Lake, where
they got off at the pavilion; that he was
seen within an hour afterwards, on an
East Lake dummy, coming in the direction
of Birmingham, without the deceased, and
alighted from the dummy in the city; that
the defendant’s conduct and declarations
show that he had a motive to commit the
crime; that the defendant’s wife and other
daughter, Emma, and Irene Hawes, came
to their death near the same time, in sub-
stantially the same manner, under circum-
stances tending to show that they were
murdered by the defendant; that the mur-
der of the deceased was part of a gencral
plan or scheme formed by the defendant
to rid himself of these three members of his
family. Thisisa brief statement of the
theory of the state. (2) The defense
claims, on the other hand, that the defend-

SRR, RO gage ap le Dec tt

Petes

me

ionega naan

<A NE his aaleSt 4  M

Ali,

ant
Mo;
fei
Nigh
fore
Cits
pure
COFLS
retui
wre
Yael
hig,
sen }
ein
home
bet s\
the ce
gone;
any
alive:
dumm
aut [eo
Waals |
Oi; Maiy
hive |
at the
that
duet |
INNoce:
tions «
nev to ¢
has fail
tunits
Deter
the fol!
excepte
each oj
quatlific:
a@ fixed «
iten tia
Viction «
denee, (}
to ask 4
§ 4353 -)
Which yi
cations,
With vo
amount,
quired b.
defendan
doubt,
degree of
in this ¢
jury, and
any way
to your «:
defendant
voreed, o7
divorced,
riage, the
be that |
tracting |)
the evider
sonable di
actually «
honestly
at the tim:
presumes
tive or int
Marriage,
right in w.
sidering «
cuse, to ft:
facts, circu
tne defend
into consi
V.7so.

006 SOUTHERN REVORTER, Vou. 7. UAla,

mont, bereviewed and revised on appeal. "1
This language clearly contemplates the
reservation of an exception whenever the
oceasion for it arises, regardless of the
time at which the trial is subsequently
had; and doubtless an exception properly
reserved at the time at which a change of
venue is refused, and made a part of the
record by a bill of exceptions taken as of
that term of the court, would ordinarily
be available on appeal from a final judg-
ment thereafter rendered. Such was the
state of facts involved in the case of Hus-
sey v. State, 87 Ala. 121, 6 South. Rep. 420;
and, though no issue was made on the
point, the objection was treated as being
well taken, at a term of the court prior to
the trial. But the subsequent interposi-
tion of another or other applications, and
action upon them, complicate the question.
What, then, becomes of the exception first
reserved? Does it still infect the record
in such manner that whatever action may
be taken on the subsequent motions, and
however correct such action may be in it-
self, the final judgment will be reversed if
this court concludes that, on the facts
then presented, the first motion should
have been granted? Suppose such an ap-
plication is supported by proof of violent,
all-pervading, and bitter prejudice in the
county against the defendant, yet is de-
nied, and an exception is lodged in the
record, and, years after the case comes on
for trial, another application is made, the
proof is conclusive and overwhkelining to
the effect that all prejudice and bias
against the defendant has entirely subsid-
ed, and, even, has been replaced by general
sympathy for the defendant, and belief in
his innocence, and this application is de-
nied, and the trial is had, of the fairness
and impartiality of whieh there is no sort
of question, would this court reverse a
judgment of conviction because of the de-
nial of the first motion, though fully con-
vineed of the propriety of the second de-
nial, and thefairess and impartiality of
the trial? Or, to further iliustrate, sup-
pose the first motion is improperly refused,
the exception duly taken, and injected into
the record. The next day, or at a later
hour of the same day, another motion is
made and granted. The trial is removed
to another county, of defendant’s own
selection; and he is there tricd and con-
victed. Can that conviction be avoided
and annulled because of the court’s refusal
to grant the first application? We appre-
hend not. The end of the law is to secure
a fair and impartial trial. When an ap-
plication is made for a change of venue,
because such a trial cannot be had in the
county of indictment, that application is
improperly refused, and if, without subse-
quent motion in that behalf, the defend-
ant at any later time is tried and convict-
ed, that judgment will be reversed. But
if, after such erroneous refusal, the defend-
ant againapplies fora removalof his case,
he thereby opens up the whole matter, in-
vokes a trial de novo, and waives the in-
firmity of the record resulting from the
first denial. The second hearing is in the

1Code Ala, § 4485.

nature of a new trial of the specific issue;
and the defendant’s assault upon the find-
ing of the court in that issue must fail or
succeed, as error has or has not been com-
mitted on that hearing, just as error com-
niitted on a retrial, and not that infecting
the former trial, is alone available to re-
verse the second judgment. To hold oth+
erwise would lead to inextricable con‘u-
sion and embarrassment, and result: ot in-
frequently in defeating the avowed pur-
poses of thestatute. ‘This construetion in-
volves no curtailment of a defendant’s
right to apply for a change of venue as
often as he may deem advisable, and se-
cures to him aremoval of his trial in all
cases when in the judgment of the court
below, or this court on appeal, he was en-
titled thereto at the time of his last appli-
cation. Applying these views to the pres-
ent case, it follows that only the action of
the criminal court of Jefferson, on defend-
ant’s third and last application, will be
reviewed. In discharging this duty, we
shall confine ourselves strictly to the case
made before, and passed on by, the pri-
mary court. Weenter upon the inquiry,
indulging the presumption that the pro-
ceedings of the lower court are free from
error. Before its action will be reversed,
this court must see affirmatively that er-
ror has been committed. It is not enough
that it may not clearly appear the ruling
below was right, or that we, acting as <
court of original jurisdiction, would have
hesitated to have decided as the primary
court has decided; but we must see, and
see clearly, that its action was wrong.
Idwards v. State, 49 Ala. 834; Lewis v.
Teal, 82 Ala. 288,2 South. Rep. 903; Spivey
v. Allman, 82 Ala. 878, 3 South. Rep. 528;
Ex parte Nettles, 5S Ala. 26s.

The question, then, is, did the criminal
courterr in overruling defendant’s third
application fora change of venue? The
evidence in support of that application
consisted of three several affidavits of the
defendant himself, to which, and as a part
of which, were exhibited sundry excerpts
from newspapers published in Jefferson
county; and asmal) book, entitled “'The
Hawes Horror,” the aflidavits of E. T.
Taliaferro and William Vaughan, defend-
ant’s attorneys; and the affidavits of five
other citizens of the county. Ieach and all
the aflidavits of the defendant himself are
as strong, perhaps, as language could
inake them, to the effect in general terms,
that hecould not havea fair and impar-
tial trial in the county. They give an ac-
count of the state of public feeling im-
mediately after discovery of the eriime,
which was characterized by open and vio-
lent threats against him, and which culini-
nated on December 8, 1888,in an assault on
the jail by a large mob, with the avowed
purpose of putting him todeath. They al-
lege that this state of public feeling was en-
gendered Dy newspaper publications, and
was kept alive and deepened and embit-
tered, subsequent to the riot at the jail, by
other newspaper publications, and the
book referred to above; all of which were
largely circulated and read in the county.
All of these publications, he avers, were
either absolutely false, or so exaggerated

tinu
mar}
for it
ble, j
ulati

(Ala.
er first
ee cond
Oo} any

+, and pre-
ing. * Will-
il: without
rate’? means
ontradistinc-
‘Malicious’

we with inten-
sult of sud-
means Con-
iv. The law
ime these ele-
ive existed in
t a moment
ict, it is sufli-
2 previously
iife of the per-
» the result of
ployment of
» it. Murder
nlawful and
being. The
oO degrees of
id -premedita-
derin the first
“re unlawful
out malice,
You will ob-
ie ingredient
jaughter, by
nan being of
first degree;
“lunder any
aughter in the

‘his part of
yas’ 3. also
ort MEL)
eas me to
December 3,
is seen that
je Bryant, [a
icated in the
4d, convicted,
itiary for life,
here he catled
the direction
ninutes after
hland avenue
iort distance
and came on
‘irmingham,]
a short time
ht, they were
y line, travel-
{ Lake, where
that he was
ards, on an
ithe direction
deceased, and
‘he city; that
| declarations
o commit the
vife and other
llawes, came
time, in sub-
ander circuim-
at- they were
that the mur-
{ of a gencral
he defendant
\cmmbers of his
‘ment of the
The defense
av the defend-

Ala.) , HAWES o. STATE. 305

unt was not at Fannie Bryant’s house on
Monday night, and was not on the [igh-
land avenuedumimy with the deceased that
night, but was on the Saturday night be-
fore; that he then eame with her to this
city, from his home,in order to make some
purchases preparatory to taking her to a
convent in Mobile on thenextday; thathe
returned home with her thesame night, be-
tweeneight and nine o’clock; thathecame
back, to the city about nine o’clock that
night, with his little son Willie, in order to
sendhimto Atlanta; thatatthattime Mrs.
Emma Hawes,and May and Irene, were at
home; that be returned home that night,
between one and two o’clock, and found
the door of his house open, and his family
gone; that this was the last time he saw
uny one of these members of his family
alive; that he was not on the East Lake
dummy on Monday night, and was never
at East Lake in his life but once, and that
was three or four months before the death
of May: that he has shown that it would
have been impossible for him to have been
at the scene of the crime,—in other words,
that he has proved an alibi; that his con-
duet has been entirely consistent with his
Innocence, and he has made no. declara-
tions or admissions tending in any man-
ner to criminate him; and that the state
has failed to show cither motive or oppor-
tunity to commit the crime.”

Defendant requested the court to give
the folowing charges in writing, and duly
excepted to the refusal of each: “(1) When
each of you was examined as to your
qualifications as jurors, whether you had
u fixed opinion against capital or any pen-
itentiary punishment, or whether a con-
vietion could behad on circumstantial evi-
dence, this question the court was required
to ask you by statutory provision, (Code,
§ 4333;) but this qualification or oath
which you have taken, as to your qualifi-
cations, in no way restricts or interferes
with your right [to decide] as to the
amount, sufficiency, or degree of proof re-
quired by you, and each of you, to find the
defendant guilty beyond all reasonabe
doubt. (2) The amount, sufficiency, and
degree of proof on circumstantial evidence
in this case is purely a question for the
jury, and is not limited or restricted in
any way whatever by questions asked as
toyourqualifications asjurors. (3) If the
defendant knew that he was actually di-
voreed, or honestly thought that he was
divorced, at the time of his last mar-
riage, then the presumption of law would
be that his motives were innocent in con-
tracting his second marriage. (4) If,from
the evidenee in this case, you have a rea-
sonable doubt whether the defendant was
actually divorced from his first wife, or
honestly believed that he was divorced,
at the time of his second marriage, thelaw
presumes him innocent of any wrong mo-
tive or intent in contracting the second
marriage. (5) As jurors, you have the
right in weighing the evidence, and in con-
sidering all the questions arising in the
case, to take into consideration all the
fnets, cireumstances, and surroundings of
tne defendant. You havethe right to take
into consideration the fact that the de-

v.780.n0.8—20

ceased was the childof Uie defendant; and
the law presumes that a parent has an af-
fection for his own offspring, and that, in.
stead of doing her harm, he would rather
protect her from injury. (6) The law en-
tertainsno presumption against the cour e
of nature. On tie contrary, it is strong
presumption of the law that nature will
take its usual course, and that the defend-
ant, being the father of the child for
whose murder he is here indicted, bore no
malice or illwill towards the child, but, ou
the contrary, that he bore towards her
the love which is natural for a parent to
bear towards his offspring, and that in
danger he would rather protect and take
care of herthan doher harm (7) Thelaw
presumes that the defendant is innocent of
this crime; and, in addition to the usual
presumption of innocence, the law also
presumes that the defendant did not kill
or have anything to do with the killing or
injury of the deceased, if the evidence
shows that she was his own child. (8)
The law presumes that the defendant was
legally divorced at the time of his second
marriage, and this presumption stands in
his favor until the contrary is shown.”

Code Ala. § 2790, provides that the stat-
utes of another state, purporting to be
printed by its authority, are evidence,
without further proof. Section 2754 pro-
vides, inter alia, that the court may state
theevidence to the jury when it is disputed.
Defendant was convicted, sentenced to
death, and appeals.

E. T. Taliaferro and J. J. Altman, for
appellant. W. L. Martin, Atty. Gen., and
Jas. f. Hawkins, for the State.

McCLELLAN, J. Three applications for a
change of venue were made in this case,
and denied by the court. The first was
filed on January 24, 1889; the second, on
the 8th of February; and the third, on the
22d of April. The first was overruled on
January 28th. The second was passed un-
til April 28d, and on that day it and the
third application were severally and suc-
cessively refused. Separate exceptions
were reserved by the defendant to the ac-
tion of the court in each instance. The
first application, with its exhibits, was, by
reference and adoption, made a part of
the second; and both the first and second,
with the exhibits thereto, respectively,
were, in like manner, made a part of the
third. By agreement of counsel all the
affidavits and exhibits which had been
filed in support or denial of former appli-
cations, as well as such applications them-
selves, were “taken and considered, with
the last application, as a part of the pro-
ceedings thereunder.” The appeilant now
severally assigns as error the overruling
of the first two applications, as well as
the last, and insists that, if the action of
the court below was erroneous in either
particular, be is entitled to a reversal.
This presents a new question, and one not
wholly free from difliculty. The statute
provides that the application “must be
made as carly 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-


(Ala.

pecific issue;
ipon the find-
must fail or

not ceom-
as "COmM-=
thie cting

ailable to re-
To hold oth-
icable con‘u-
lresult:ot in-
‘uvowed pur-
ustruection in-
defendant’s

» of venue as
able, and se-
3 trial in all
of the court
al, he was en-
iis-llast appli-
s to the pres-
the action of
mn, on defend-
ition, will be
‘his duty, we
ly to the case
1 by, the pri-
1 the inquiry,
that the pro-
are free from
| be reversed,
ively that er-
is not enough
ag the ruling
», acting as ¢
., would have
the primary
nust see, and
was wrong.
O4; Lewis v.
». 908; Spivey
uth. Rep. 528;

t iminal
di third
yenue? The

application
davits of the
and as a part
idry excerpts
in Jefferson
entitled “The
ivits of Ie. T.
izhan, defend-
idavits of five
ach and all
it himself are
iwuage could
cneral terms,
ir and impar-
‘y give an ac-
ic feeling im-
of the erime,
open and vio-
{ which culmi-
an assault on
h the avowed
ath. They al-
‘oeling was en-
ications, and
d and embit-
at the jail, by
ons, and the
of which were
in the county.
1@ avers, were
» exaggerated

Rhine £9 A Same Drie re EN PO gy, liga Saeap

Roce Ce aroma Lanta in

Ala.) TAWELS ov. STATE, 307

and distorted and denunciatory of him
that the public mind was inflamed and ex-
cited against him, andso continued to the
time of the trial. He further gives an ac-
count of the assault on the jail, and its
bloody repulse, involving the death of 12
or 15 citizens, and the serious wounding of
as many more, and affirms that this terri-
ble calamity intensified public sentiment
against him in such sort that it was neces-
sary to his protection from mob violence
to have the jail guarded for nearly a week
thereafter by a large body of state troops,
etc. Wehave given avery careful examin-
ation to the several publications exhibit-
ed to defendant’s application. We fail to
find in them any denunciation of the de-
fendant calculated to arouse public resent
ment. They contained no undue assump-
tion of his guilt, but, on thecontrary, treat
it as an open and disputable question.
Nothing appears to have been stated for
the purpose of arousing indignation, or
tending tocreate prejudice, except in so far
as the publication of the facts and circum-
stances.of the murders as they were devel-
oped might have had that effect; and in
stating the facts there appears to have
been no disposition to suppress whatever
was favorable to defendant. The state-
nents may have been, more or less, over-
drawn, and it would have been very
strange if they had not beer so, in view of
the occasion and the circumstances under
which they were made. They were, how-
ever, such publications only as papers all
over the country are accustomed to make
under like surroundings, and we do not
doubt but the matter contained in them
reached the public with avery much great-
er approximation to the exact truth than
ifit had passedfrom mouth to mouth, and
thus been disseminated among the people.
The publications, down to and for several
days after the jail shooting, show, beyond
all question, that there was, during that
time, wide-spread and intense excitement
and prejudice among the people of Bir-
mingham and vicinity against the defend-
ant. It is immaterial how this state of
things was produced. Its existence alone
concerns us. And its existence at that
time is not seriously controverted by the
state, though there is evidence in these ex-
hibits, and in the affidavit offered by the
prosecution, tending to show that the ex-
citement was ephemeral in its nature; as,
for instance, that intoxication was not an
unimportant factor in the condition of
things which precipitated the assault on
the jail, and that by the result of that as-
sault public feeling was diverted from the
defendant, and directed against the officers
who defended the jail insuch manner that
it was said: “In an instant Hawes and
his murdered wife and children were for-
gotten, and the excitement and fury of
the people were directed against Sheriff
Smith,” and confined to acertain class “of
rash and excitable nen, who do not con-
stitute the juries of the county.”

Did this excitement and resentment con-
tinue down to the trial? It may be re-
marked in the outset that the conditions
for its continuance were much less favora-
ble, in a large and rapidly increasing pop-
ulation like that of Biriningham and Jef-

fersop county, than they would have been,
perhaps, in any other county of the state.
The publications made subsequent to the
disturbances on and about December 8,
T888, were not calculated to keep it alive,
but, on the contrary, their tendency was
to excite sympathy for Hawes, and doubt
of his guilt, rather than prejudiec against
him, and assurance that he was the perpe-
trator of the atrocious crimes. Neither
these publications, nor anything else,
shows, or tend to show, a renewal at any
time or any disposition to renew mob yvio-
lence. The defendant swears that preju-
dice against him not only continued, but
grew more bitteragainst him. Pretermit-
ting the infirmity of interest which natur-
ally infects his testimony, it is manifest
that he was not ina position to know
much about the state of the public mind,
and for this reason, of itself, what he says
is entitled to very little weight, except in
so far as he is corroborated by other testi-
mony. Messrs. Taliaferro and Vaughan,
and five other witnesses—seven in all—af-
firm the continued existence of violence
and bitter prejudice against the defendant
to such an extent that he could not possi-
bly get a fair and impartial trial. They
speak from their knowledge of public sen-
timent, derived from conversations with
very many citizens of the county. The at-
torneys say they have been unable to secure
more affidavits, because very many per-
sons to whom they have applied, while
stating that they did not believe an impar-
tial trial could be had, yet refused to make
affidavit to that effect, lest the enmity
against Hawes should be visited on them
also. Against this showing of prejudice,
on April 23, 1889, the state filed the affi-
davits of 65 citizens of the county, who
show they had ampleopportunity to know
the condition of the public mind at that
time on the subject under inquiry. Among
them were officers of the county, necessa-
rily much in contact with the people, news-
paper men, bankers, physicians, mechan-
ics, farmers, railroad men, contractors,
merchants, mine operators,ete. They rep-
resent all classes and avocations, andcome
from the various sections of the county.
Their evidence is not of the character held
of little consequence in the case of Scams
v. State, 84 Ala. 410, 4 South. Rep. 521.
They do not give their opinion merely.
But they state facts within their knowl-
edge, as to public sentiment in the county
of Jefferson, and they give the source of
their information. They swear they have
been thrown in contact, and have con-
versed about the Hawes cases, with very
Inany people.—in some instances “hun-
dreds,” in others “many hundreds,” in yet
others “ thousands, ”—fromall parts of the
county. They give the expressions of these
people, showing their own and the public
sentiment and feeling in regard to the de-
fendant, his guilt orinnocence, and his tri-
al. They state the expressions of these
very many people on minor matters and
facts tending to show public sentiment.
They give the opinion of these very many
people, based upon their own knowledge
of the public mind, as to whether the case
can be fairly and impartially tried in the
county. All these expressions and indices

“at

ALABAMA.

4g

; UNIV ERSITY: OF

312 SOUTITERN

tradictory ofthe terms of the writ required
by law to be issued, and which was issued,
in thiscase, and they were properly treated
by the court below as surplusage.

The court did not err in overruling de-
fendant’s motion to quash the venire. In
80 far as that motion was predicated on
the fact that the jurors for the trial of this
case had been drawnand summoned under
and in compliance with a statute passed
after the commission of the offense. its de-
nial is fully supported by the authorities.
Lore v. State, 4 Ala. 178: South v. State,
&6 Ala. 617, 6South. Rep. 52, and cases cited.
The other grounds of the motion are rest-
ed on the mere fact that the clerk had not
written up the minutes of the primary
court, and hence there was, strictly speak-
ing, no record of the order for the special
venire. The transcript before us demon-
strates that the order, in due form, was
made, and that a copy of it was regularly
served onthe defendant, as also a list of
the jurors summoned under it for his trial.
The prisoner thus had every right which
the law secures to him in this connection,
and he was not, and could not have been,
prejudiced by the temporary delay—notat
allunusualin practice—of theelerk in trans-
cribing the order of the judge into the ree-
ord of the court.

Itis the duty of the court to ascertain
whether jurors, examined on their voirdire
have the statutory qualifications; and,
among other things, he should inquire of
them whether they have, at the time of
their examination, a fixed opinion, as to
the guilt or innocence of the defendant,
which would bias their verdict. It is man-
ifestly immaterial whether they at any
time, or for any length of time in the past,
have had such opinion. We understand
from the record that this duty was fully
performed with reference to the juror Penn :
and he was deelared to bea competent
juror. Defendant’s attorney then requested
the court to propound to him the further
inquiry whether he had not before that
time had a disqualifying opinion on the
question of guilt vel non. Weare unable
to see what bearing, or any relevancy,
the answer to this question could have
had onthe issue which the court wascalled
on to determine. He was equally a com-
petent juror, whether he answered yea or
nay. ‘The only end to be subserved by in-
quiry on this point was to udvise the de-
fendant as to the expediency of peremptor-
ily challenging the juror. Certainly there
is no duty resting on the court to go into
an inquisition, the sole purpose of which
is to aid the defendant to determine wheth-
er he will challenge a juror peremptorily.
But, even if it be conceded that an aftirma-
tive response to the question would have
authorized a challenge for cause, the ac-
tion of the court must still be held free
from error. To require the court to enter
upon such an investigation would be even
more objectionable, because involving a
greater expenditure of time, than the prac-
tice condemned in Bales’ Case, of allowing
such examination directly by defendant’s
attorney. There it is said: “We know of
no authority,and we perceiveno reason, for
any such speculative, inquisitorial p ‘actice,
consuming needlessly the time of thecourt,

tEPORTER, Vou. 7.

(Ma.

and offensive to the persons subjected to
it. Theruleis ancient that neither party
has a right to interrogate a juror before he
is challenged.” Bales. vy. State, 63 Ala,
38. See, also, State v. srooks, 92 Mo. 542,
55. W. Rep. 257, 330; Penn v. State, 62
Miss. 450,

The theory of the prosecution in this
case, as developed on the trial, was that
the defendant conceived that the lives of
Emma Hawes, his wife, and of their chil-
dren, May and Irene, stood between him
and the consummation of a second mar-
riage, and hence that the motive which
prompted the murder of each of them was
the saine. There was evidence tending:
strongly to support this theory, and to
show that the death of cach one of the
victims was but a part of a system in
which the lives of all were involved, and in
the working out ot Which, to the aceom-
plishment o: defendant’s ulterior purpose,
the life of each was, in substantially the
same manner, ruthlessly sacrificed. Under
these circumstances, all evidence going in
any way to conneet the defendant with
the murder of his wife, or of his daughter
Irene, was relevant to the issues involved
on his trial for the murder of May, and
was properly admitted. Lawson v. State,
20 Ala. 65; Alsabrooks v. State, 52 Ala.
25; Gassenheimer v. State, Id. 313; Cross
v. State, 78 Ala. 430; Ingram vy. State, 39
Ala. 247; McDonald v. State, 88 Ala. 46, 3
South. Rep. 305; 2 Bish. Crim. Proc. $$ 189,
235, 261, 827; Com. v. Robinson, 146 Mass.
571, 16 N. E. Rep. 452, and cases cited.

The witness Cann, being called to prove
a conversation he had with the defendant
at the time of his arrest, testified that he
was then acting asa reporter forthe Even-
ing Chronicle; that he made notes of the
conversation, and from them wrote out
an account of what was said for the pa-
per; and that this account was published
in the paper, after being cut down, and
some parts of it omitted. It was shown
that the notes from which the article was
written had been destroyed. Upon this
showing, the witness was allowed to re-
fer to and read the article as published, to
refresh his memory in regard to what was
said by the defendant at the time in ques-
tion. To this there was an exception.
We do not think it is tenable. The ar-
ticle as published was written by the wit-
ness. Itcontained, the witness swears, the
substance of what the defendant said.
The question presented by the exception
comes within the principle adjudged in the
care Of Horne v. Mackenzie, 6 Clark & F,
628, where a surveyor was permitted to re-
fresh his recollection by reference to a print-
ed copy of hisreport, which had been made
up from his original notes, of which it
was, in substance, though not in words, ¢
transcript; and in the case of Topham vy.
McGregor, 1 Car. & K. 320, in whieh the
writer of an article in a newspaper was Iet
in to swear to the facts stated in the ar-
ticle, though he had no independent recol-
lection of them, but swore that all the
statements made in a series of articles,
of which this was a part, were true. The
same principle is negatively asserted in
New York, where the court held that the
memory of a witnesscould not: berefreshed

= Sg aR

ATa.)

by refer
purport
Blatemer |
larvation:
Which
the pur;
Co., 47 N
iv. 11:
Ala. 494
It is at
far prince)
client ang
to an ati.
ing the :
to a pari
fessional
thereto,
in evidene
by the eli:
law that
agent, or
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and client
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lowed to
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further!
it rests, 1]
obtained |
that it s!
made to
SccuLring o:
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agent or.
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at Jeast, iy
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tions bety.
and exten:
Which such
noturther,
§$ 289, 240.
v. Forster,
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2Dowl. & }
75, 6 South
The privil
eations may
under the er
other is an a
6 Esp. 113;):
made to al:
attorney,ali
and was |]:
(Barnes vy. i
the other ha
ifestly would
made by a j
‘ance of his
henee neces;
securing his
equally clear
to a person \
clerk of an a}
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(Ala
inion against
iris it, and
1 be had
in vay in-

their right to
‘cieney, or de-
% conviction,
vo juryinto the
‘horized to ace
ground: thay
Ty on evidenee
tanding such
yend a rea-

1d 8, to the ef-
i the time of
1, or honestly
reed from his
innocent mo-
‘the last mar-

IIe was not
the marriage
Che motives
behalf are be-
‘which could

The utmost
onsummation
nd no light be
juestion of his
at to marry
in legal con-
heen divorecd
lain her; and
remarry may
‘re, the same,
‘. position to

‘© of crime in
ry is shown.

bee which
of eence,
ug 1e re-

uinal bore to
ld be added.
general pre-
ether protect
presulnption
r, we see no
y not be ex-
ofinitely, and
mankind at
indly and af-
‘Uons general
‘2 the issues
12 the jury.
‘sumption is
oS, and in all
ice Which ex-
© hypothesis
i this, what-
ileged author
charged, the
urges 5,6, and
fused,
°oS requested
«l were mere
all, of them
hey were in-
»advaneed in
ie state. On
m was prop-

this case hay
Iivery excep-
everal which
reated in this

Ala.) RAINS 0.

opinion. There are, however, several ex-
veptions upon which we have not written,
because they are patently without merit,
and because of our desire to set some limit
to an opinion already very long.

We find no error in the record, and the
Judgment of the Jefferson criminal court
is affirmed.

The day fixed by the court below for the
execution of the sentence of death pro-
nounced against defendant having passcd,
It becomes our duty to specify another
day for his execution. It is accordingly
ordered and adjudged that on Friday, the
2th day of February, 1590, the sheriff of
Jefferson county execute the sentence of
the law by hanging the defendant, the
said Dick Hawes, by the neck until he is
dead, in obedienee to the judgment and
sentence of the criminal court of Jefferson
county, as herein afiirmed.

RAINS V. STATE.
(Supreme Court of Alabama. Jan. 28, 1890.)

MurpER—CHANGE oF Viinun—EviIpbENcE—IN-
STRUCTIONS,

1. Ona murder trial, a change of venue is not
warranted by defendant’s testimony that at the
time of his arrest a mob was formed to hang him,
und that the officer who arrested him avoided the
nob by going another route, and by tbe testimony
of two other witnesses that people gencrally be-
lieve defendant guilty, and think he ought to abide
the consequences, where the arresting officer tes-
tifies that he never heard of any mob.

2. Where it appears that the acceptance of a
loan by deceased, who was defendant’s brother,
from a third person, angered defendant, and con-
tributed to the quarrel resulting in the killfug,
evidence that defendant had previously sued the
third person, for slander, the suit having been
based on deceased’s affidavit, but not of the par-
ticulars of such suit, is admissible.

3. When defendant testifies that, during the
quarrel between himself and deceased, the latter
spoke of defendant’s daughter, he may be asked
on cross-examination if what deccased said was
slanderous.

4. Threats of defendantagainst deceased, run-
ning through many months down to just prior to
the killing, are admissible on the question of mal-
ice.

5. It is improper to ask a witness if a certain
portion of his testimony is as truthful as the bal-
ance,

6. Where defendant testifies in his own be-
half, he may be asked, on cross-examination
where he was from the time of the killing until
his arrest.

7. Where the evidence tends to show a motive
for the crime, an instruction based on the hypoth-
esis that there was no motive is properly refused.

8s. A charge that, when the prosecution relies
on circumstantial evidence alone, proof, by a pre-
ponderance of evidence, of a single fact inconsist-
ent with defendant’s guilt, calls forhis acquittal,
is properly refused where there is positive testi-
mony that defendent committed the killing, and
no fact inconsistent with his guilt is shown.

9, Where there is no proof that deceased had
previously struck defendant, except that defend-
ant had given that as a reason for threats he had
made, a charge assuming it as a fact is properly
refused.

10, Where there is evidence that defendant
provoked the difficulty resulting in the killing, a
charge that, “to warrant an acquittal on the
ground of self-defense, the defendant must have
been wholly without fault,” is correct.

Appeal from circuit court, Morgan coun-
tv; JoHuN Moore, Judge.

STATE. 315

tobert J. Rains was convicted of the
murder of his brother, Bone Rains, and
sentenced to be hanged. Before trial, de-
fendant applied for a change of venue on
the ground that he could not get-a fair
and impartial trial in the county. In his
application he stated that when he was
arrested, and his arrest became known,
amob was formed to take him from the
custody of the deputy-sheriff, and hang
him, and the officer avoided the mob by
traveling anotherroute. J. M. Echols, the
deputy-sheriff by whom defendant was
arrested, being examined in his behall, tes-
tified that he never heard of any mob, and
that he traveled with his prisoner on the
usual mail route; that hehad heard“ right
smart talk about the killing, but no more
than there is generally over any killing;
never heard anybody say that defendant
ought to be hung, or ought to have his
neck broken, but the people generally be-
lieved that he killed his brother, and have
heard people say that if he did kill his
brother he ought to abide the consequences
of the law.” W.J. Owens, another wit-
ness fordefendant, testified: “I haveheard
some people say that they thought that he
ought to have justice; that they beiteved
that he was guilty, and ought to be tried
for it according to law, and have justice
done him. Don't know that I ever heard
any one say that he ought to be hung, but
have heard people say that they believed
that he killed his brother. The gencral
opinion of the people I have heard speak
of itis that he is guilty, but I have not
heard inany talk about it,—notmore than
two dozen.” The affidavits of M. EH. Me-
Cullom and W. C. Cornelius were also sub-
mitted, but whether for or against the ap-
plication the record does not show. The
court overruled the application, and de-
fendant duly excepted.

It appeared on the trial that the dead
body of deceased was found in or near the
public road, about five miles Jrom Iart-
selle, early in the morning, one day in Jan-
uary, 1889; and near by were found a pair
of gloves, and a nubia or wrap, which
were identified as belonging to defendant.
It was shown, also, that, on the preceding
day, defendant, deceased, J. L. Alexander,
and several other persons, were in Somer-
ville, in attendance on the county court,
where a suit or criminal prosecution was
pending against Alexander for slanderous
words alleged to have been spoken by him
about defendant’s daughter; the affidavit
on which the suit or prosecution was
founded having been made by the deceased.
The case was not tried, and the parties in
attendanee started for home in the after-
noon; defendant and his brother, with J.
D. Sims, being on horseback, and the others
in Alexander’s wagon. “Chey all stopped
at Hartselle about dusk, and ate some
crackers and oysters, for which Alexander
paid; and Alexanderfurther testified that,
“having made friends with Bone,” the de-
ceased, he lent him 25 cents with which to
buy a pint of whisky. The partics separat-
ed at the fork of the roads, several miles
beyond Hartselle; defendant, deceased, and
Sims going to the right, while the others
took the left road. Sims further testified,
on the part of the prosecution: “Defend-

TY OF A

bi
Ls

nm

NIVER

;

z

U


Ma.) ITAWES

by reference to an article which “did not
purport to be, and was not in truth, a
statement of a conversation with or dec-
larations made by the plaintiff,” and
Which was therefore not competent for
the purpose in view. Downs v. Railroad
Co., 47 N. Y.87; 1 Whart. Ev. § 522; 2 Tayl.
Ev. 1198 et seq.; Acklen vy. Hickman, 68
Ala, 494.

It is a thoroughly well-settled and famil-
far principle that communications between
client and attorney, or from any person
to an attorney, with a view to establish-
ing the relation of client and attorney as
to a particular matter, and secu ting pro-
fessional advice or other aid in respect
thereto, are privileged, and eannot be put
in evidence, unless the privilege be waived
bythe client. It is equ ally well established
law that an interpreter, intermediary,
agent, or clerk of an attorney, through
whom communications between attorney
and client are made, stands upon the same
footing as his principal, and will not be al-
lowed to divulge any fact coming to his
knowledge as the conduit of information
between them. But the rule extends no
furtherthan this. The reasons upon which
it rests, the salutary objects, sought to be
obtained by its observance, do not require
that it should embrace communications
made to an attorney otherwise than in
gecuring or directing his professional serv-
ices, Or communications made to the
agent orclerk of an attorney otherwise
than for transmission to the at torney, or,
at least, in and about and in furtherance
of the discharge of the duties incident to
the confidential relation. The privilege,
in other words, is confined to communica-
tions between the attorney and his client;
and extends to the necessary organs by
Which such communications are made, but
nolurther. 1'Payl. Ev.791,792; 1Greenl. Ev.
§$ 289, 240; Whart. Ev. §§ 581, 582; Taylor
vy. Forster, 2 Car. & P. 195; Moss v. Bran-
der, 1 Phillim. Eee. 254; Studdy v.Sanders,
2Dowl. & R. 847; Cotton v. Sta te, 87 Ala.
75, 6 South. Rep. 396.

The privilege does not include communi-
cations made by one person to another,
under the erroneous supposition that the
other is an attorney, (Fountain vy. Young,
6 Esp. 113;) and hence not where they were
made to alaw student in the office of an
attorney, although he represented himself,
and was believed, to be the attorney,
(Bares v. Harris, 7 Cush. 576.) And, on
the other hand, the rule of exclusion man-
ifestly would not apply to communications
made by a person to an attorney in igno-
rance of his professional character, and
hence necessarily without any purpose of
securing his professional aid. And it is
equally clear that communications made

v STATE. J13

ter, attorneys. Defendant came to the of:
fice of that firm, and, finding . the witness
there, asked whether he was ;: lawyer.
The witness replied in the negative. Then
Without further inquiry, orany knowledge
respecting witness’ relations to the attor-
neys, and without evincing any desire or
purpose to have witness communicate to
them what he was about to say, he made
the statements deposed to by the witness.
Very clearly thesestatement were not privi-
leged communications, and there was no er-
ror in admitting them in evidence. Weeks,
Attys. §§ 148, 144,

The transcript of the record of the de-
fendant’s marriage in the state of Missis-
sippi was not certified as required by the
act of congress for the authentication of
the records of one state in the court of an-
other, The act of congress, however. isnot
exclusive of any other method of authenti-
cation of publie office books whieh the
courts may deem it proper to admit, or
the states see fit to adopt. 1 Greenl. Ey. §
489; Packard y. Hill, 2 Wend. 411; Lo-

throp v. Blake, 3 Pa. St. 483; Hempstead
And the inquiry is

v. Reed, 6 Conn. 480.

whether Alabama. has adopted a difierent
mode of certification in respect. to the ree-
ord in question. Section 270 of the Code
provides: “Registers of narriages, births,
and deaths, kept in pursuance of law, or
any rule of a church or religious society,
may be certified by the custodian thereof;
and, when so certified, are presumptive ev-
idence of the facts therein sta ted, as well
as of the law or rule in pursuance of which
such registry was made, and of the author-
ity to certify the same, ”

It is insisted, however, that this statute
has no application to registers of mar-
riages, etc., madeand kept out of thestate.
We are unable to admit this contention.
The provision is found in the chapter of
the present Code devoted to “ Evidence, ”
and is apartof an article thereot which
undertakes to give the “General Rules of
Evidence.” Inthat article are several seC-
tions declaring entries in certain books to
be competent evidence, and, though they
contain no express declaration as to

whether such books kept beyond the state
would be admissible, yet it is clear that

books of the class mentioned would be

competent, wherever they were kept or

the entries made. Such, for instance, are

the books of physicians, provided for by

section 2777, and entries and memoranda

made by a deceased representative, guard-

ian, or trustee, as provided for by section

“778. It can searcely be doubted that the

competency of such books is unafiected by

state lines. Again, there are several other

sections embraced in this article which

provide that certain certifica tes, books,

to a person who was in fact the agent or
clerk of an attorney, but of which fact the
other was not advised, could not have
been confidentially imparted, or made
with a view to their being repeated to an
attorney, and are not privileged. The
facts last hypothesized are precisely those
involved in the admission of the testimony
of the witness Glover, to which an excep-
tion was reserved. Glover was the confi-

etc., made orkept in this state, shall be re.
ecived in evidence. Thislimitation is very
persuasive to show that the law-makers
had in mind throughout the article the dis-
tinction between books, records, and cer-
tificates within the state and those with-
out, and that, whenever it was the legis-
lative purpose to confine the operation of
the law to the boundaries of the state,
that purpose was expressed. But. aside

dential law clerk of Hewitt, Walker & Por-

from these considerations, section 2780, we


314 SOUTHERN REPORTER, Vor. 7.

think, clearly indicates on its face that it
was not ta be confined to the state. All
of its terms are general, and its last clause
is wholly inconsistent with the construc-
tion contended for by appellant. That
clause makes the certificnte of the custodi-
an of the record authenticated, “ presuip-
tive evidence of the facts therein stated, as
well as of the law or rule in pursuance of

which the” record is kept, and of the au-

tho1ity to certify the same. With respect
to such record kept in pursuance of law,
the provision quoted could have no field of
operation, were we to confine the act to
registers kept within the state. Thecourts
are held to know the laws of this state,
which provide for records of marriages,
ete., and they could not look elsewhere
than in the statute books for evidence of
what these laws contain. In like manncr
our courts judicially know the custodian of
the records of marriages made in pursu-
ance of laws of thestate, and that heis au-
thorized to certify transcripts thereof, But
the laws of other states imust be proved,
and we cannot give effect to the plain
terms of the scetion under consideration
without holding that it was intended to
provide one mode for the proof of laws of
other states, under which marriage regis-
ters are kept, and forproof of the authori-
ty of the custodian thereof to certify cop-
ies of the same, and therefore that all the
provisions of that section apply as well to
records made and kept beyond, as to those
kept within, the state. Carhart v. Clark’s
Adm'r, 31 Ala, 596.

The Codeof Mississippi was properly ad-
mitted in evidence to show what officer in
that state is thecustodian of its records of
marriages. Clanton v. Barnes, 50 Ala.
260; Code, § 2790. The evidence of the wit-
ness Glover, on cross-examination, as to
the character of defendant,—that he “had
heard forthe last few years that defendant
had frequent difficulties with and struck
his wife, "—was properly admitted, under
the rule laid down in the case of Moulton
v. State, 6 South. Rep. 7os8, (at present
term.).

The definitions of “murder” and “man-
slaughter,” given by the court in its gen-
eral charge, are in accordance with the
doctrines elaborately discussed and adop-
ted by this court in cases of Judge v. State,
5S Ala. 406, and Mitchell v. State, 60 Ala.
26, and reaffirmed in the cases of De Arman
y. State, 71 Ala. 3858; Lang v. State, s4
Ala. 1, 4 South. Rep. 193; Cleveland vy.
State, S86 Ala. 1, 5 South. Rep. 426; and
miuny others.

The objections to that part of the gen-
aral charge which undertook to state the
theories which the evidence for the prose-
cution and defense, respectively, tended to
establish, is untenable. The tendencies of
the evidence on either hand appear to be
very accurately set forth by the presiding
judge,and his right to thus bring the facts
at issue to the attention of the jury is un-
doubted. Code, § 2754; Tidwell v. State,
70 Ala. 44: 1 Bish. Crim. Proc. § 979.

Of the charges requested by the defend-
ant, and refused, the first and second
were to the effect that the statements of
jurors, when examined on their voir dire,

“ig hae ry "p

(Ala

that they had no fixed opinion against
capital or penitentiary punishment, and
that they believed conviction could be had
on circumstantial evidence, in no way in-
terfered with or restricted their right to
determine the amount, sufficiency, or de-
gree of proof necessary to a conviction,
tended directly to mislead the jury into the
belief that they would be authorized to ace
quit the defendant on the ground thay
proof of his guilt rested solely on evidence
of circumstances, notwithstanding such
evidence convineed them beyond a rea-
sonable doubt.

Charges numbered 3, 4, and &, to the ef-
feet, thatif the defendant at the time of
his second marriage had been, or honestly
believed he had been, divoreed from. his
first wife, the law imputes innocent mo-
tives to him in contracting the last mar-
riage, were properly refused. He was not
being tried for entering into the marriage
relation a second time. The motives
which actuated him in that behal? are be-
yond any issue involved, or which could
havebeen raised,in this case. The utmost
purity of purpose in that consumination
may be conceded to him, and no light be
thereby thrown upon the question of his
guilt or innocence. His right to marry
again was precisely the same, in legal con-
templation, whether he had been divorced
from Idina Ilawes or had slain her; and
his reasons for desirng to remarry may
have been, and doubtless were, the same,
however he put himself in a position to
exercise the right.

The law presumes innocence of crime in
all cases until the contrary is shown.

3ut we know of no principle upon which

to this general presumption of innocence,
other presumptions, depending on the re-
lations which the alleged criminal bore to
the victims of the erime, could be added.
Ifaman,in addition to the general pre-
sumption, is entitled to further protect
himselffrom punishment by a presumption
of affection for his daughter, we sce no
reason why the principle may not be ex-
tended to other relatives indefinitely, and
to, his friends, and even to mankind at
large, upon evidence of his kindly and af-
fectionate disposition, or relations general
and special, thus multiplying the issues
without limit, and confusing the jury.
Such isnot thelaw. The presumption is
single, and the same in all cases, and in all
must be overturned by evidence which ex-
cludes every other reasonable hypothesis
than that of guilt. Beyond this, what-
ever the relations of the alleged author
and the victim of the act charged, the
prosecution need not go. Charges5, 6, and
7 were, therefore, properly refused.

Moreover, all of the charges requested
by the defendant and refused were mere
arguments, and most, if not all, of them
of themselves indicate that they were in-
tended to meet some position advanced in
argument on the part of the state. On
this ground alone,each of them was prop-
erly refused.

Iovery exception reserved in this case has
been carefully investigated. Every excep-
tion argued by counsel, and several which
were not argued, have been treated in this

3
r
#
&
t

ee et ee

wiv

Ala. )

opinion
reptios
becaus:
and bee
to an ©:
We fin
judgink
is aflirn
The d
execu tic
nounecd
it beeo
day for
ordered
2th da
Jefferso
the law
said Di:
dead, in
sentenc:
county,

(Supre)
Merb:

1 On
warrant:
time of }
wel that |
mob by s
of two ©
lieve de}
the con:
tifies thi!

2. Wi
loan by
from a th
tributed
evidence
third pe
based on
ticulars o

3. OW
quarre] }
spoke of «
on CLrOSS
slandere

4. ‘1
ning thi
the killin
ice.

5. Iti
portion o|
ance.

6. Wi
half, he
where he
his arres!.

7. W)
for the evi
esis that 1

ds. A (
on cireuli
ponderanc
ent with
is proper].
mony that
no fact i

9 Wh
previous]
ant had gi
made, a cl
refused.

10. Wt
provoked
charge th
ground ol
been whol

Appeal
ty: Jon

cant

Ea

im,
a

6, Griminat: ta 57200)

. after: the killing.” oe es
om. Criminal law 78201) gt Ag E ynerty

8. Criminal law. SBlatI7) |

that, two persons acting: in concert were

 » tion of weight. of testimony of state’s wit:
ness were properly refused ‘as either’ cov-

' ered by oral’ ‘charge; ‘or as confusing and
placing “tindué | emphasis on phases of the
_ evidence, or as grounded on the assumption
that there could be no. eponyiction. yatthout
_testimony, of. the, witness.

; AL Criminal law © 782(10) ieee
Charges. ‘that af conviction " depeiiaed :
“upon testimony of any two or any” three
- “svitnesses, and: if. jury had any doubt as
: a, to their Sth tainese jury ‘could not con-

ADS eR ds

Where thére'was nio’évidence in prose:
cution for. murder in.ithe ‘first degree that
ballistic examination or test of defendant’s .
gun had been made ‘after shooting, court.
properly refused to allow defendant's coun-
sel to. argue to. jury that state didnot pro-
duce ballistic expert to show that bullets
which killed’ deceased came” ‘out ‘of ‘gun
which was Paves, Hy, defendant. the fay

' Court »properly:; ‘refused eqacated
charges: adequately povered: aye oral, charge:

SETS pigen bey

Where all evidence in prosecution for
murder in. ‘the’ first degree was not cir-
cumstantial, court could properly - refuse

- instruction on’ sufficiency of circumetsntisl
evidence i in a criminal eaves tel goas debs

9. ‘Homicide o=305 i Me.
Where. tendencies of ‘evidence. were

present at time of. Killing, charge that
probability that some other person might
have done the shooting was sufficient. to

_ create reasonable doubt of guilt requiring »

defendant's ‘acquittal, was properly refused
even if person with defendant fired’ fatal
shot,’ in’ view ‘that \both’ were principals

: present, aiding, and ‘abetting i in commission
of ‘the OitenteF Bi NE Ta Se AERA

ae i Criminal, Jaw. 7000, a1, ‘B14(15),

~~ 829(10) — :
Where. state’a case could have been
based solely. on evidence apart from testi-

mony of state’s witness who was present

when defendant. allegedly fired fatal shot,
charges tending to limit jury’s considera-

why

38 sourmenn REPORTER, 2a SERIES

Pe Wy

viet deleidant were. properly. Tefused as
JADAITACS | ambiguous, and confusing. eke

siApbeat from: Cleat Court, Jefferson
pean Robt he Wheeler, Judgescrctiit

Perry Lee Haygood, alias Kemp Perty,’

was convicted of murder in the - first de-
Bree, ‘and he bppeales

” Affirmed.

The: flowing charges ¥ were refused to :

defendant

ale The. “court, Pred: ‘the jury ae
the. test of sufficiency of circumstantial evi-.

dence. in» a criminal case is* whether the

‘circumstances. as. Proven are capable of.
explanation. . upon any reasonable hypo-

thesis. Consistent , .with the defendant’s in-

‘nocence, and, if- they are capable of any
such | explanation, then the defendant
‘should. be’ acquitted. ne

33, The court shares hay jury ‘that the

S peabability that some ,other person may,
have done, the shooting is sufficient to
‘Create ja reasonable doubt of the guilt of
the. defendant, and. therefore. for his ac-.
quittal.” wa

Ky A ‘The Polite harite: ihe, jury, vehat if
they believe from the. evidence the only
evidence tending to corroborate the testi-
mony of Jack ‘Black Jack’ Sims that tends
to® connect ‘the defendant with the com-
mission of the offense ‘is the | ‘testimony
of McKinley Burriett, and if the jury: do

not believe the’ testimony. of McKinley
‘Burnett: to be true they must find me dee

fendant ‘not ‘guilty. se

38 ‘ The ‘court charges the juty ‘that
if they believe from the evidence the only

evidence ‘tending to corroborate ‘the testi-
mony “of Jack ‘Black Jack’ Sims that tends
; to connect the defendant with the commis-

sion of the offense i is the testimony of Mc-
Kinley Burnett and Officer Thorn, and if

the jury do not believe. the testimony of
Officer Thorn: and .McKinley Burnett to
> be true, nee must find the Gefendant Not

Quilty) seen as *
40S The: court. hives che] dary that if

a conviction in this case depends upon the
testimony! of any ‘two™ witnésses;’ and if
the jury have a reasonable doubt: as to. the

rater by ulltha ads

a nn ee :

a

ROR Oe monet as

eg BORE S

SS I ea na

ETN aii reennigiet ape

Say

PAS Sa

ah See


ir. -ctive

@ that Char-
é owned the
acres, which

homestead at

tas 3 ~
Le aa estate
}
ate :
Wc, Or20or TO
: ap am I~
eRe =
6 wes oz
\ " 15

SRVaren and

aris death,

y question of
Was'the value
When Charlie
ge in excess
would have
Rave con-
Value did not
Stead exemp-
dno interest
*yientitled to
apart to. her
ase scems to
ry , and
ret
# had on the
course, well
Adow’s right

iéstead prope
ad had been
apart to her,
sox v. Mc-
660; Mont-
9449, 153 So.

the testimony
is a diversity
to. the value
Hot "the de ath
Db ‘sekvcs un-
Wat the trial
clusion that
the widow's
& Lo set out
ytin detail
Be Tet would
by we refrain
But ht results
St Wiley had
feet bic cor

Prey Lea
Fah.

HAYGOODy.STATD 9 0 Ala; 698
Cite na 38 80.24 693

ract with appellant was therefore a nullity

and that the original bill was properly dis-:

missed,

[4] As to’ the cross appeal of. Sallie

challenging the decree in so far as it denied)

her claim for damages for detention of a
portion of the property by appellant, we
also find no error. On the whole case we:

are impressed by the fact that all the par- |

ties involved were largely ignorant of their
rights, or lack of them, under the law. It
secms that until Sallie, the widow, was ad-
vised of her rights she thought the home-
stead property was jointly owned by herself
and Ernest, She acquiesced in his partici-
pation in rents and profits derived from the
property until in 1940 when Ernest under-
took to sell an interest to appellant and
thereafter for a period of time acquiesced
in appellant’s occupancy and use of that
part of the tract. he sought to buy from
Ernest.. While at no time and in no man-
ner did she participate in any negotations.
for the sale of any part of the tract to ap-
pellant, all of the dealings between herself
and appellant, we think, ‘afforded ample

basis upon which a court of equity might.
j y

well found a decree denying her claim for

damages for detention jegninat Bppelline

Thompson,

[5] As to the cross aanlpamente of both.
Sallie and Ernest questioning the decree
in taxing the costs against them, we. think
there was no error. In equity. the matter
of costs rests largely in the discretion. of
the chancellor. _ Equity Rule 112, Code 1940,
Title 7, Appendix, p. 1122: Plateau Com-

‘munity Ass’n. v. Green, 243 Ala. 531, 10

So.2d 860. On the whole case as presented
to us on the record, we find no abuse of dis-
cretion in the manner of taxing the costs
and apportioning hem between the ‘cross
appellants,

Tt is our épiition that the decree asa
whole should be: affirmed! ane it is SO ors
dered. i

Affirmed,

BROWN, LIVINGSTON, and STAKE.
LY; JJ.,, concur,

3& 8O0.2d—38

yh te erate pemnanra eran ee rem

HAYGOOD vy. STATE.
6 Div, 762. *

Supreme Court of Alabama.
lane Jan. 20, 1949,

‘Rehearing Denied Feb, 17, 1949,

A _ Criminal law €1030(1), 1048

| Purpose of objection and exception is
i | Thallence correctness of action of cour
so that such action may be corrected by

court, if deemed erroneous, and to lay.

foundation for review, if necessary, by
appellate tribunal; and, without suclf ob-
jection and exception, trial court ordinarily

has right to assume that its action is ac-

quiesced in and free from error, .

2, Criminal law €>1056(!)

The. Automatic Appeal Act, providing
that appellate court may. consider in. its.
discretion any testimony seriously preju-

dicial to rights of appellant and may re-

verse even though no objection or ex-

ception is made thereto, does not embrace.

court’s oral charge when no exception is
taken. Code aN Tite 15, §§ WS a0) et
seq., 382(10).

3. Criminal law €1036(2), 1054(1).

‘In prosecution for murder in first de- :

gree, court’s preliminary questions of ac«
complice as state’s witness asking whether

he wanted to testify and tell truth, and

warning him that any testimony might

be used against him, amointed in’ effect:

to administering an oath, and questions
and replies, even if considered as evidence,
were not so clearly prejudicial to rights
of defendant as to call for review. Code
1940, Tie 15, § 382(10).

4, Witnesses CF45(2)
Whether a child. is of Me taaient in-

telligence to understand nature and sancti-

ty of an oath is a question largely within
discretion of trial court,

5, Witnesses: 6>45(2)

_ Where 11-year-old witness .stated his
age, that he went to school, was in sixth
grade, and. knew. that a good boy would

tell the truth, trial court could properly

permit him to. ‘testify in Prosecution for
murder in the first degree. oe

pita flttn
1, Weim —WY OG

PRE GE at Me mR EE TT”

i Aan An ii aE ab Rat Pre

ee OS. Fo aris


charges 40 and 417

B98 Ala,

ing, creates no reisonable doubt of their
equal guilt. ae a RENE te RT BB

[10] - There was. no error in. refusing
charges 37,'.38,; 55, and..56,. All, of, these
charges. are c¢ither <covered iby. the oral
charge, are confusing, place undue empha-

‘sis on certain; phases of,the evidence or

are grounded,on the assumption, that there

could be no conviction without. the testi ic. rata tactarepilandekbasl nek 4
mony of the accomplice Jack ‘Sims. . This . eae deine elaine ceuuired
‘under the‘statute to obtain a license as a

“wholesale dealer in pamber weg A940,
re 51, §§ 546, 585.

overlooks. ‘the: state’s case which. could. be
based solely on. evidence, apart from the
heprimony of: Jack. Sims. a ele stead

[11] There | was: no error in refusing
They : are ¢ abstract, am- give

fi MOV Bhai

5 Div. 257. oe nee AOE eae ae :
a, lor appellec bees

Court. of Appeals of, Alabama. {ps :
jp Aug. cy 1948,",

“Rehearing Denied Oct: 5, 1048,

* “A es if ah
ve Appeal and error ©=655(3).- piayrgsye
Where compliance «with wits “of cer-

“tiorari commanding clerk-of trial court to

<- is

2. Statutes 65248

oe a

complete original récord resulted in. elimina-
-tion of defects forming basis of motion to

strike out transcript of evidence, motion to |

-isttike ‘out presented. moot: questions pnd :

motion would, be: aueriiled

In: construing eallog? statutes, which “

‘are of. doubtful application, ‘the taxpayer.
. will be: afforded, the: benefit, of any “doubt,
“and ‘such statutes, “should ‘be construed in-
“favor of, ‘the’ taxpayer and against ithe
“states 0 A

Bos ace ‘fo :

28 ‘SOUTHERN REPORTER, | 2a SMRIES | eG eee
& Ltoonses C160: a bial Sols ol £83

Where’ operator, of. several! ceonimiilia
conareyed ‘nearly (all lumber cut) from a

‘stand of timber: to'a planing plant also
-owned | by him ‘where the lumber was re-
. sawed if necessary and processed, and for
‘most part sold at wholesale and operator

purchased about five per cent of his rough
lumber from others, operator was'a “lum-

See Words! and» Phrases, SC aisinds
| Bdition,: for other judicial ‘constructions
‘and definitions of “Lumber Manufacturer’.

biguous ‘and confusing. Lh and. “Wholesale Dealer. in Lumber”...
The judgment of Hts lower court must be Sut STARE apo ehoy Tah Hola: oF
affirmed. © > Ph RS eS OS tea: Bot Ee CG Vs

» Affirmed, on er reee ne a ‘ al 8 ee A Apel froin & SCipeuit Cour: ‘Elmore

‘ County Oakley: W. Melton; Judge.
- BROWN,” “FOSTER, LIVINGSTON, ‘
LAWSON, and SIMPSON, JJ., concur.»
ro oa adem ee AE Seca ake Wet ao
eit fendant, Fee Appeals

"Action’ to recover license tax under Code:
1940, Tit. 51, § 546, by the State against
From a. judgment | for: de-

Affirmed teas Pe
Certlonst dented, hy Suprenie Goin im

ie y, Holt, Div, 462, 38 So.2d 602,

A. A. Carmichael, Atty. -Gen., and ‘Gard-.

ner F, Goodwyn | Jt. Asst. Att) Gen, for:
appellant. 1: oars ay

> Holley, Milner, & Holley of f Wetunpla,

AB

CARR, ‘Judge,

abe ~The appellee filed a motion to strike-
the transcript of the evidence. .On petition:
of the _Attorney General this court , set.
‘aside the former submission of the cause
and ordered. that a writ of certiorari issue:

ito ‘the clerk of the lower court cothmand-

ing. him ‘to complete the original record.

The: compliance : with. this command has.

resulted in correction and. completion of
many of the ‘objections: on which’ the

grounds ‘of.. motion. to: strike. were based.

‘In the present state of the.record the mo-
‘tion presents’ moot: ators -and it. is.
‘therefore overtuled, |

~' Complaint is made that the’ brief of ap-

“pellant fails to substantially comply with.
| pba | Court ‘Rule ‘No®. 10: Code 1940,.

a it al IM a a le a

Tit. 9

dense
form.
tion: ‘
exten
word

Iti,
moré
have

Vola
rial }
periof
was:
tute:
consi
chant
sever.
in an
stand
and
in th
latter
planix
two.¢
roof,
With
that..y
the s

. opera

and’’'t
plane
state’,
whole

‘In’
mater

E. vee
| Aare

tay te

he perti-
aw’

ab

ry in this

about it?
ny .testi-
might, be
sere You

ath about
pwent to

Fw
ap

teption to
gonfended
§ not nec-
f the pro-
act which
ypeals the
its discre-
mus! y prej-
Pant, and
fo lawful
sithereto,”

40, et

oh and ex-
ectness e
uch actio

bE itself, if
ie founda-
the appel-
jection and
ily has the
' is acqui-

eo:C J. § ©

Ape al and
gestion od

a *to s
s iennatit

| aa ruling
Phave held
ithe court’s
ba is taken
Ala, 359, 20
( Ala. 363,

iio

(3] ‘We do not think that: the. words
employed’ by the court should be construed
as assuming the guilt of the defendant or
as indicating that the witness. would tell _
the truth, as argued. by» “the appellant.
Rather they show a purpose on the part of
the court to advise Jack. Sims of his con-
stitutional rights and. to Jay. the ground-

work for possible leniency to, him-on the

charge against him. , Odiorne vy. State, 249
Ala. 375, :31,;S0.2d) 132; Long v. State, 86
Ala. 36, 5 So;-4433. United: States v. Ford,
99 U.S.. 594, 25 L. Ed. 399, What the court —
said amounted in ‘effect, to administering an

oath to the witness. ‘We. say: all. this be-

cause even if: we assume. that: the words.

of the court taken together. with the replies.
of the defendant constitute evidence (see.
62 C.J. p. 830), still under the discretion —
given us by the act we do not think that the

question and answers were prejudicial 10.2

the rights of the defendant and call for any
further ‘comment. 32) Aa ;

Th It is aT eued ‘that the court y was in er-
ror in allowing the. witness McKinley Bur-
nett to testify. The theory is that on ac-
count of his age—I1 years of age—the wit-
ness did not understand ‘the nature and
sanctity of an oath. We: set ‘out ate perti-
nent part of the record: Sei h

"OO By the Cour) How old are ¢ you?
A. ‘Eleven, | cna

“OD you go to cao vAL: “Yes sir.

“QO. What grade. are you in? A, 6-A

“Q. What school Ses hee g0 to? A.
Lincolns 0

OB Do you g oot to Sunday school Land

church? A. Yes sire’ °°
1), Will a good boy t tell the truth? A

Yes | sir. tes © RS

[4, 5] We And no. st imecit in 1 the conten?
tion. Whether a child is of sufficient in-
telligence to understand the nature and”
sanctity of an oath is a question largely ©
within the discretion of the court. Carter -
v. State, 205 Ala, 460, 88 So. 571; ‘Puckett
v.. State, 213: Ala, 383,105 So, 211; Petty ,

v. State, 224 Ala, 451, 140 So. 585... There

is nothing to show abuse of such discretion. -
It may be added that the testimony of the .
witness, after he was pronounced qualified .
by the court; shows him to be intelligent ;

HAYGOOD y. STATH SR pe man
He Cte pase Road es Ala 597
_and of an understanding entirely sufficient

to qualify him as a witness.

ap I, Tt’ is claimed that ithe ‘court |

‘was inverror in refusing to allow defend-
ant’s counsel to argue to the jury that the
‘state did not produce a ballistic expert to
show that the bullets which killed Trotter
came out of the gun which was pawned by
the appellant. In excluding this argument
the court stated that counsel had a right to
argue the evidence and the inferences to be
‘drawn from the evidence. It is enough
to say that there was nothing to show that
a. ballistic examination .or test -had, been
‘made. And so there was no expert ac-
quainted with the. facts whom the state

failed to produce.” ‘There was no error in:

this” regard.

“t7, 8] Iv. Urhere. was no error in re-
fusing charges ‘10, 12,16 and 19... These
.chargés weré ‘adequately’ covered by) ‘the
oral charge, There was no error: in refus-
ing charge at, Such a charge has been.
held good when all the evidence is cir-.
cumstantial. Pickens v. State, 115 Ala. 42,
22 So. 551; McDowell. y. State, 238 Ala,
101, 189 So: 183: Suttle.v. State, 19 Ala,
‘App. 198, 96 So. 90, 91. ‘It is sufficient to
to say that all the evidence in the present
case is not. ‘circumstantial. Parsons. v.
“State, Ala., 38 So.2d 209, Ex parte State

ex rel. Attorney Seca Oba v. See -

Ala., 39 So. 2d. ae

[9] Thar: was" ‘no error’in refusing —

charge 33. As pointed out in Pickens v.
‘State, 115 Ala. 42, 22 So, 551, the charge

would be proper 4 the evidence was cir-_

cumstantial pointing to: the defendant and
to some other person not acting in concert
‘with him. See ¢Spraggins. v.. State, 139

‘Ala? 93; 35 So. 1000.* However, tendencies
of the evidence for the state in the case —
‘at bar were that two persons acting in con-

cert were present at the time of the kill-
ing. Even if it be conceded—which is on-
‘ly done for the sake of argument—that
Jack Sims fired ‘the shot, this would not
raise a reasonable doubt of the guilt of
"defendant. Both were. principals, present,
aiding and abetting in the commission of
‘the offense. , As to these two a probability
that one and not ‘the other did re shoot-


@ HAYS AUTOPSY: MOBILE — Against one of
his final wishes, convicted killer Henry Hays’ body was
autopsied by the Alabama Department of Forensic Sci-
ences’ Mobile office following his execution.

Henry Hays

The autopsy was performed Fri-
day morning after the U.S. District
Court in Mobile denied a motion to
block the procedure.

Hays, a former Ku Klux Klan
member, was executed early Friday
morning at Holman Correctonal
Facility in Atmore for the lynch-style
killing of 19-year-old Michael Don-
ald.

Hays’ attorneys filed a motion
Thursday in federal court to block
the procedure. Richard Kerger, a

Toledo, Ohio, lawyer representing Hays, said Hays
thought the autopsy would be unnecessary and did not
want his body disfigured.

Escambia County District Attorney Mike Godwin,
who orders autopsies after all executions, said they are
necessary after executions to ensure that the con-
demned prisoner was not mistreated before the execu-
tion and that the procedure was carried out according

to the law.


By Mike Cason
MONTGOMERY ADVERTISER

Unless Gov. Fob James issues a
last-minute stay of execution, a
new entry will be etched in Ala-
bama’s racial history just after
midnight.
Former Ku Klux Klansman Hen-

ry Hays, 42, is scheduled to die in
Holman Correctional Facility’s
electric chair at 12:01 a.m. Friday
for the murder of a black man beat-
en and hanged in the style of terror
that made the Klan infamous.

The last Alabama execution in a

white-on-black killing was in 1913,
Watt Espy of the Capital Punish-
ment Research Project in Headland
told The Associated Press. In that
event, two whites were hanged in
Birmingham for killing a black
cockfighting trainer.

Hays admits to being a Klan
member but proclaims his inno-
cence.

Thomas Figures, the former as-
sistant U.S. attorney who helped
prosecute him, said Hays is a
“cold, calculating murderer’ who
“lied through his teeth” during the
trial. Figures said Hays’ execution

is significant because of the nature
of his crime.

“To the extent that the Klan or
any other group would deliberate a
show of racist force and commit
murder and think they would get
away with it with just a slap on the
wrist, I think it would be unlikely
there would be that scenario
again,” Figures said.

Hays’ attorney, Richard Kerger
of Toledo, Ohio, asked James on
Tuesdas to commute Hays’ sen-
tence to life without parole. Aides
for James, who is vacationing in
Canada, said he would announce

his decision this morning. ASSOCIATED PRESS PHOTOS
Kerger and opponents of the 4 fi {

death penalty raised several issues Convicted killer Henry Hays shows a reporter a copy of

in Hays’ case: the Ten Commandments he illustrated during an April

= The trial judge sentenced interview at Atmore’s Holman Prison. Hays is sched-
Hays to death despite the jury's uled to die in the electric chair at 12:01 a.m. Friday.
recommendation of life without pa-
role.

a Hays’ indictment was signifi-
cantly changed 17 hours before his
trial, leaving the defense no chance
to prepare.

= Hays’ alleged accomplice,
James “Tiger” Knowles, was also
the main witness and received a
life sentence in exchange for testi-
mony.

Judy Cumbee, a member of the
anti-death penalty. group Project
Hope, said vigils for Hays will be at
the prison at 11 p.m. today and at
the Executive Mansion in Mont-
gomery at 11:30 p.m.

Hays was convicted of abducting
Michael Donald at random from a
Mobile street, driving him across
Mobile Bay to Baldwin County and

Henry Hays is
shown in 1983
in Mobile Coun-
ty Circuit Court
during his trial
for the 1981
murder of 19-
year-old Michael
Donald.

Please turn to KILLER, 2A

AWEaTISER.

cals

ASSOCIATED PRESS

Henry Hays would be-
come the 16th inmate to
die in Alabama’s electric
chair since 1981.

ALABAMA’S
DEATH ROW

« Average time there: 11.5
years

» Annual upkeep: $12,774

» Execution cost: $10,681

« Now on death row: 150 men
4 women

Executions since 1981

Alabama executions and Getes
since the death penalty was re!n-
stated:
«John L. Evans: 33, white, of
Mobile County, April 22, 1983
« Arthur Lee Jones: 47, black,
ot Mobile County, March 21,
1986
» Wayne E. Ritter: 33. white, of
Mabile County, Aug. 28, 1987
s Michael Lindsey: 28, black,
of Mobile County, May 26, 1989
s Horace Dunkins: 28, black, of
Jefferson County, July 14, 1989
a H.L. Richardson: 43, black,
of Montgomery County, Aug. 18
1989
» Arthur J. Julius: 43, black, 0!
Houston County, Nov. 17, 1989
» Wallace N. Thomas: 35,
black, of Mobile County, July 13
4990
a Larry Gene Heath: 40, white,
of Russell County, March 20,
1992
«Cornelius Singleton: 36,
black, of Mobile County, Nov. 20,

1992

«Willie Clisby Jr.: 47, black, of
Jefferson County, April 28, 1995
« Vernell Weeks: 43, black, 0!
Macon County, May 12, 1995

« Edward Horsley: 38, biack, 0!
Monroe County, Feb. 16, 1996

= Billy W. Waldrop: 44, white,
of Talladega County, Jan. 10,

1997
« Walter Hill: 62, black, of Jef-
ferson County, May 2, 1997

|

his. grad.)

-~-DONALD: -Stanley Donald, br., statement: “brought no
satisfaction", "...sad sight to see a young man let
his life go like that"

10 protestors (pro & con)

NAME: HAYS, HENRY FRANCIS DATE OF EXEC.: 1997/06/06 NUMBER: 392

S; YofE: 97 DR #: 2443 METHOD: ELECTROCUTION TIME: 0018
soc. CLASS: L ECO. CLASS: L EXECUTION SET : 97/06/06-EXE NO. :
RACE: W SEX: M TO-DR: 13.4 T-C: 16.2 AGE AT EXEC.: 42 DOB: 54/11/10
STATE: AL CO: MOBILE CITY: MOBILE
HOR: BOOK /MOVIE:

H: L: 3 C: 3 E: 3 SPECIAL LIST: WHITE/BLACK

DATE OF CRIME: 1981/03/21 AGE AT CRIME: 26 CATEGORY: LEO:
DATE OF SENT.: 1984/02/02 WEAPON: STABBED & BEATEN

CRIME: MURDER-KIDNAPPING NO. KILLED: 1 TOTAL KILLED:

VICT. CODE: BM19
CMTS#1: MICHAEL ANTHONY DONALD (19), kid., stabbed, beaten w/ tree limb 100+
times (DONALD had no rec., etc.)
~-after he was dead, throat cut taken to town hanged from a tree

~-"retaliation murder" for a BM who was acquited for killing a WM LEO
DONALD was picked at random
KNOWN PREVIOUS CONVICTIONS:

ACCOMPLICE: COX,Benj}.(99yrs); HAYS, B.(DIED): KNOWLESFIRST ENTER:

CMTS#2: ---Mother of DONALD --$7,000,000 civil lawsuit(87) ~Beulah Mae Donald
died 1988) --got KKK HQ. in Tuscaloosa sold for $52,000, bought home

1992/10/06 --extradition hearing in OH for BENNIE JACK HAYS (76) back to AL
-~claims Alzheimers & heart problems
JURY: 11W -1B recommended LIFE JUDGE: DEATH

ACCOMPLICE: JAMES LLEWELLYN KNOWLES [18] Fed. Civil Rights [L]
-Wit. Prot. Program in prison
BENNIE JACK HAYS [76] mistrial heart ~--DIED 1993/08/07
-Grand Cyclops of Southern AL KKK
BENJAMIN FRANKLIN COX [ ], br-in-law, -gave rope [99y]
MATT JONES [ ], ~gave’ gun .22

LAST WORDS: "I love you." to his brother, Raymond Hays {may have also directed
it to Stanley Donald also} --"frightened & tearful"

LAST MEAL: Declined

HUMOR-STRANGE: NAACP Legal Defense Fund helped oppose his (all) execution.
-~-his mother died while visiting him in prison (85/05/15)
--his best friends in prison were two black death row inmates

SOURCE: AL DOC; AP-UPI-REUTERS; MOBLIE REGIS. IQ LEVEL:

CMTS#3: BACKGROUND:
--family moved all over the place; father very harsh
--short time mnarriage while in Army
--his 2nd wife was his brother's lst wife (had a daughter-Michelle)
WITNESSES: --HAYS: -Raymond Hays, Ret. USA, (left home immed. after

a

.c The Associated Press

ATMORE, Ala. (AP) - A former Ku KluxKlansman whose killing of a black teen-ager ultimately bankrupted the KKK faction suspected
of ordering the crime was executed in the state's electric chair early Friday.

Henry Francis Hays, 42, was pronounced dead at 12:18 a.m in Alabama's first execution for a white-on-black crime since 1913.

Hays was convicted in the 1981 slaying of Michael Donald, a 19-year-old black man who was abducted at random from a Mobile street
by two men, then beaten, cut and strangled. His body was strung up in a tree by the curb.

Gov. Fob James had refused to grant Hays clemency.
Prosecutors said the slaying was ordered by Klan leaders, including Hays' father, ‘‘to show Klan strength in Alabama."

Instead of emboldening racists, the slaying wound up financially destroying the United Klans of America in 1987. The Klan was hit with
a $7 million wrongful-death verdict in a case brought by Donald’s mother.

The Klan had nowhere near that amount in assets. It had to sign over its Tuscaloosa building to Donald's mother, Beulah Mae Donald,
who sold it for about $52,000 and bought a house. She has since died.

Prosecutors said the Klan members decided to kill a black after a jury deadlocked in the trial of a black man charged with killing a white
policeman.

James ‘Tiger Knowles, then 18, testified that he and Hays picked Donald at random and forced him into a car, then beat him with a tree
limb, cut his throat and tightened a noose around his neck. Knowles was given a life sentence in exchange for his testimony.

Hays said he unwillingly jomed the United Klans to satisfy his father, an ‘Exalted Cyclops" controlling the group's southem Alabama
operations. Hays accused Knowles of framing him.

The last time a white person in Alabama was executed for killing a black was 84 years ago: Two whites were hanged m Birmingham for
murdering a black who trained fighting cocks.

Joe Marston III, assistant attomey general for Alabama, said there is no bias involved, just simple math.

‘’Most murders are black-on-black," he said. “ You'd have to do some very deep and difficult research on how many white-on-black
crimes you have, and how many fall into capital murder categories."

Executions for white-on-black crimes are rare throughout the nation. Only five of the 380 people put to death in the two decades since
the Supreme Court reinstated capital punishment were whites convicted of killing blacks, according to the NAACP Legal Defense and
Educational Fund.

AP-NY-06-06-97 0145EDT

Friday June 6, 1997 America Online: GalbaS3 Page: 1


Grant Clemency

To Henry Hays

n Friday, Alabama plans to
() execute Henry Hays, who

proclaims innocence in the
murder of Michael Donald. There
has been immense grief and horror
throughout Alabama and the world
surrounding the killing of Michael
Donald. I pray we don’t compound
it.

May we heed the words of the
victim’s mother, Beulah Mae Don-
ald, who urged Hays’ lifebe
spared. I ask readers to contact
Gov. James now, urging him to
stop this execution. Telephone 334-
242-7100, send faxes to 334-242-4541,
or send e-mail to
govjames@afnmail.asc.edu.

The legal issues are many. The
convicting testimony came from
another Klan member who ad-
mitted his own guilt but was never
prosecuted by the state, a man who
also admitted lying under oath.
James Knowles remains hidden by
a witness protection program.
Where is justice?

A jury of eight blacks and four
whites sentenced Hays to life with-
out parole. But Judge Braxton Kit-
trell pronounced the death sen-
tence, reversing the intent of
Alabama law. In appointing to
himself the prerogative of chang-
ing the jury’s sentence to death,
the judge set a precedent which
has sent to Death Row Hays and
many others who have been denied
their constitutional guarantee of
judgment by peers.

Gov. James has an opportunity
to grant clemency to aman who
claims he is innocent of the mur-
der, but was not innocent of an at-
titude of racial bigotry that has so
tarnished Alabama’s image. Henry
Hays has changed. African-Ameri-
cans who have gotten to know him
have said they find no hatred in
his heart. .

Echo the voice of Beulah Mae
Donald; please spare the life of
Henry Hays.

Judy C. Cumbee
Lanett

Montgomery Advertiser


INSIDE
& Wheat crop won't be
quarantined, government
says. 3B
m™ Alabama Roundup. 2B
= Obituaries. 4B

MONTGOMERY ADVERTISER

SECTION

TUESDAY
March 18, 1997

Court won’t hear Klansman’s appeal in black teen’s slaying

THE ASSOCIATED PRESS

WASHINGTON — The Supreme
Court on Monday refused to hear
the appeal of Henry Francis Hays,
a Ku Klux Klansman sentenced to
death in Alabama for the 1981 kill-
ing of a black teen-ager whose body
was hanged from a tree.

Hays, 42, was convicted in the
death of 19-year-old Michael Don-
ald, who was abducted at random

= —

from a Mobile, Ala., street on the
night of March 20, 1981. Donald
was choked, beaten and had his
throat cut before his body was
hanged from a tree on a vacant lot
in a downtown neighborhood. An
autopsy listed the cause of death as
strangulation.

Ten years ago, Donald’s mother,
Beulah Mae Donald, won a $7 mil-
lion lawsuit against the United
Klans of America, which was ac-

cused in a civil suit of taking ac-
tions that led to the slaying. The
verdict financially wrecked the or-
ganization, which was incorporat-
ed in 1961.

The high court’s decision Mon-
day, issued without comment,
ended the third round of appeals
for Hays, now held at Holman Pris-
on near Atmore. An execution date
has not been scheduled.

Assistant Attorney General Clay
Crenshaw, who handles death pen-

alty cases, said in Montgomery
that three rounds of appeals
usually means that no further de-
lays in the execution will be grant-
ed.

Mr. Crenshaw said Hays could
be looking at execution in as little
as three months. Hays’ attorney,
Richard Kerger of Toledo, Ohio,
conceded Hays may have little
hope left.

“Tm afraid the nature of the
crime has made a dispassionate re-

view difficult,” Mr. Kerger said.

State and federal prosecutors al-
leged that Donald was slain to
“show Klan strength in Alabama”
and to avenge the slaying of a
white Birmingham policeman. A
jury deadlocked on charges against
a black man in the officer’s slay-
ing. The mistrial occurred in Mo-
bile, where the case had been
moved because of pretrial publicity
in Birmingham.

Three other KKK members, in-

cluding Hays’ father and brother-
in-law, were also charged in the
slaying.

James “Tiger” Knowles, who
joined Hays in abducting and kill-
ing Donald, cooperated with the
government and in 1983 received a
life sentence for violating Donald’s
civil rights.

Hays’ brother-in-law, Frank Cox,
was sentenced to life in prison.
Hays’ father, Bennie Jack Hays,
died before his case concluded.

Former Klansman seeks a
reprieve in lynch- “style slaying

By Dean Stephens
Associated Press Writer

MONTGOMERY — Supporters of
former Ku Klux Klansman Henry
Hays urged Gov. Fob James to grant
clemency Tuesday, saying Hays is no
longer the man convicted of taking a
black teen-ager’s life in a lynch-style
Mobile slaying.

Hays’ lawyers and family members
asked James to commute the death
sentence, which is to be carried out at
12:01 a.m. Friday.

James’ legal adviser, Bill Gray,
heard the plea for Hays, who is to die
in the electric chair at Holman Prison
for the 1981 murder of 19-year-old
Michael Donald. The victim’s beaten,
slashed body was found hanging by a
rope from a scraggly tree on a resi-
dential street in Mobile.

“Henry’s a very loving person.
He’s not an animal,” Hays’ sister,
Gail Cox, said.

She and Hays’ brother, Ray, said
they all grew up under the thumb of a
tyrannical, strict father.

“He controlled everything we did,
everything we thought. Everything
we tried to do, we had to clear
through him,” Ray Hays said.

Ray Hays and Mrs. Cox said they
were able to get out of their troubled
family, but Henry Hays was not. Now,
with his father dead, he can be his
own man, they said, adding that he’s
suffered for 13 years.

Rick Kerger, a Toledo, Ohio,
lawyer representing Hays, said he
wanted the siblings to appeal to
James to put a “human face on some-
one who otherwise is portrayed as a
ruthless killer.”

He also suggested that Hays’ trial
was tainted by a last-minute change

3 a *

AP
Henry Francis Hays shows a reporter
a copy of the Ten Commandment he
illustrated while on Death Row.

in the charge against his client and
the fact that the jury returned a ver-
dict of life in prison without parole,
which was then put aside by the trial
judge who sentenced Hays to death.

State prosecutors, however, said if
ever a crime required the death sen-
tence, this was it.

“This is aS monstrous a case as
this state has seen,” Assistant Attor-
ney General Joe Marston III said.

He said Hays’ childhood was no
excuse for his adult behavior.

ot ee

———e

Tue DoTH

Wednes ey
june 4 dan EAGLE

Gray said he would discuss the.
request with James and provide an
answer Wednesday. But he also said
the governor was not legally autho-
rized to commute a sentence to life
without parole, only to life. That
would mean Hays could be released.

Some who oppose the death penal-
ty also appealed to Gray on Hays’
behalf and also held a small news
conference after the meeting.

“He is not the same man that he
was when he killed Michael Donaid,”
said Karen Taylor, a member of
Alabama Prison Project.

She told Gray that Hays has
worked with the project and with
other inmates, black and white, and is
no longer a threat to society. Other
groups pointed out that Donald’s late
mother even asked that Hays’ life be
spared.

Hays’ final appeal was denied
about two months ago when the U.S.
Supreme Court refused to hear his
case.

He was convicted in 1984 of ran-
domly abducting, beating and stran-
gling Donald. Key testimony in the
trial came from James “Tiger”
Knowles, another Klansman who said
he joined Hays in the abduction and
killing. Knowles’ testimony came
after he pleaded to a reduced charge.

Prosecutors said the killing was
carried out “to show Klan strength in
Alabama.”

Hays, now 42, says he unwillingly
joined the United Klans of America to
satisfy his late father, an “exalted
cyclops” who controlled the group’s
south Alabama operations and was
also charged in the killing. He blames
the KKK link for his conviction,
always. insisting he did not kill Don-
ald.

Continued from 1A ;
death of Jack McGraw in Pinson

.on May 26, 1986.
@ Upheld a lower court ruling

’ that William Thomas Knotts
-“should be tried as an adult for
.’the robbery and shooting death
‘ of Helen Rhodes on Oct. 18, 1989.
“She lived near the Mt. Meigs
“Youth Facility in rural Mont-
‘“gomery County and was killed
-?shortly after Knotts escaped.
_-Knotts was 17 at the time of the
killing.
. In the Ku Klux Klan case,
‘eHays was one of three men sen-
‘$tenced for selecting Mr. Donald
‘sat random on March 20, 1981,
‘Seutting his throat and using a
“noose to hang his body from a
tree. They were accused of try-
‘ing to demonstrate Klan strength
-after a jury deadlocked and a
. Imistrial was declared for a black
man charged with killing a white
‘policeman.
‘ Friday’s ruling marked the
‘ssecond time Hays’ case has gone
‘through the state appeals courts.

His first trip ended at the U.S.
Supreme Court, with the court
refusing to review his conviction
and death sentence.

In his second round of appeals,
Hays contended that an accom-
plice, James L. “Tiger” Knowles,
lied to the.jury and admitted ina
later hearing he had lied about
some facts. Judge Bowen wrote
that Hays’ “argument would be
convincing had Knowles been
the only witness to incriminate
the appellant,” but plenty of
other evidence, including three
other witnesses, connected Hays
to the crime.

Hays, 37, also argued that his
death sentence was unfair, con-
sidering Knowles got a life sen-
tence for violating Mr. Donald’s
civil rights. The appeals court
said Knowles was treated differ-
ently because he was 16 when
the crime occurred, he pleaded
guilty rather than going to trial,
and he cooperated in the investi-
gation.

The third man who was con-

sare:

Vreseenet Bem ott, -

victed, Benjamin Franklin Cox,
got a 99-year sentence for mur-

der.

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2F Saturday, J unie 8, 1996

C | Montgomery Advertiser

=

a PRES

aoe ASSOCIATED PRESS .

ATLANTA -— A federal appeals court
has upheld the capital murder conviction
of a Ku Klux Klansman convicted of beat-

ing and hanging a black man in Alabama -

15 years ago.

The 11th-U.S. Circuit Court of Appeals
on Thursday rejected an appeal by Henry
Hays, who was convicted and awaits exe-
cution for the March 20, 1981, slaying of 19-

year-old Michael Donald. Hays claimed his
defense attorney was ineffective in repre-
senting him.

A unanimous three-judge panel of the
circuit: said Hays failed to:show how even
the most effective attorney would have
changed the outcome of his trial.

“This crime has haunted Alabama over
the years because it was so gruesome, Vi-
cious and utterly without reason,” Ala-
bama Attorney General Jeff Sessions said
Friday.

ourt aagheld: mur¢ ler ‘convictio

3 “Mr. ISéscithis invedligated the case as aur

US. Attorney for the Southern District of:

Alabama.

Hays and two other men in a car Salted
alongside ‘of Donald, kidnapped him at
gunpoint and took him to a desolate area
where they beat him, slashed his throat
and hung his body in a tree, court records
said.

The three were following the trial of a

black man accused of killing a white man
in Alabama at the time. ;

“Michael Donald was a young man with
his life before him, who simply had'the ill

‘ Juck to walk down the wrong street at a

time when these men were looking for
someone to vent their rage and hatred
upon,” said Mr. Sessions.

Fellow Klansman James ‘Tiger’
Knowles pleaded guilty in federal court
and testified against Hays. He is now serv-
ing a life sentence. Hays’ father, Bennie
Jack Hays, a ranking KKK officer, also
was charged in the murder, but he died be-

n of Klansman

fore his retrial. The first attempt to try the

“elder Hays ended in a mistrial when he bez

came ill.

Circuit judges Phyllis Kravitch and
Stanley F. Birch concurred in the deci-
sion, written by Judge J.L. Edmundson:
The ruling upholds a decision by the U. Sz
District Court for the Southern District of,
Alabama.

Hays’ execution date is expected to *
set for early next year, said Claire Austin;
a spokeswoman for the Alabama USS. at-
torney. ;

COURT |

KKK lynchman

appeal denied

A federal appeals court in
Atlanta has upheld the capital
murder conviction of a Ku Klux
Klansman convicted of beating
and hanging a black man in
Alabama 15 years ago. op

The llth US. Circuit Court of

on Thursday rejected an

_ appeal by Henry Hays, who was con-
--victed and awaits execution for the

March 20, 1981, slaying of 19-year-old
Michael Donald. Hays claimed his
defense attorney was ineffective in
representing him. A unanimous
three-judge panel of the circuit said
Hays failed to show how even the
most effective attorney would have
changed the outcome of his trial.
“This crime has haunted Alaba-
ma over the years because it was
so gruesome, vicious and utterly
without reason,” Alabama Attor-
ney General Jeff Sessions said.

Saturday
June 8, 1996
THE DOTHAN EAGLE


Time is short for condemned ex-Klan

By Garry Mitchell
ASSOCIATED PRESS WRITER

ATMORE — Henry Francis Hays
blamed his father. He blamed his de-
fense lawyer. He blamed the Ku Klux
Klan. He never blamed himself for a
murderous act of old-style Klan terror.

Now the former KKK member, locked
on Alabama’s Death Row for 13 years,
acknowledges he has little chance of
avoiding execution — possibly ‘this
Summer — for the 1981 murder of a
black teen-ager whose body was strung

up with a rope and hanged from a tree
in Mobile.

“T’ve got 3 percent hope, and 90 per-
cent ‘dis-hope,’ ” Hays said.

He still has his alibi. He said he took
no part in the random abduction, beat-
ing and strangling of 19-year-old Mi-
chael Donald, whose body was found
hanging lynch-style from a scraggly
tree on a residential street in Alabam-
a’s port city.

The killing, which prosecutors said :

was Carried out “to show Klan strength
in Alabama,” was an outrage that
raised chilling images of robed mobs

with torches and ropes earlier this cen-
tury.

It inspired civil rights lawyers to file
a unique civil lawsuit that financially
bankrupted a major Klan organization
linked to the killing.

Hays, now 42, says he unwillingly
joined the United Klans of America to
Satisfy his father, an “Exalted Cyclops”
controlling the group’s south Alabama
operations.

He blames the KKK link for his con-
Viction, always insisting he did not kill

Please turn to KLANSMAN, SA

Montgomery Advertiser

Monday, April 21, 1997

SmMan

LLOYD GALLMAN/STAFF

From left, Reba Cunningham, Mary Riser and Judy Cumbee protest the execution of Henry
Hays during a Thursday night vigil outside Holman Prison. ;

Protesters cite varied reasons
for opposing Hays’ execution

By Alvin Benn
MONTGOMERY ADVERTISER

ATMORE — Flashlights flick-
ered in a pitch-black pasture as op-
ponents and advocates of the death
penalty mingled with friends of
Henry Hays to protest his impend-
ing execution.

They met late Thursday, about
two hours before the former Ku
Klux Klansman was strapped into
the electric chair for killing a
black teen-ager in Mobile 16 years
ago.

A yellow police
crime scene tape
————_ was stretched

a Victim's ,

into a large
psa le square to accom-
eness. 1A. modate death

penalty oppo-
nents and propo-
nents, but few
could see it without flashlights or
headlights from vehicles pulling
into the field not far from the exe-
cution site.

Lack of amenities from state
prison officials did not seem to up-
set the six young men who spoke
against the death penalty as well
as Mobile County Circuit Judge
Braxton Kittrell’s decision to over-
rule a jury’s recommendation that
Hays be sentenced to life without
parole.

“A jury of this man’s peers sen-
tenced him to life in prison and
then Judge Kittrell ... went back
and said, ‘Well, I don’t agree with

NS

them so I’m just going to say he’s
going to get the death penalty,’ ”
said Pratt Patterson of Mobile., ©
Patterson and another Mobile
resident, Matt Green, said they te fi ee
were aware of an Alabama law, 4 big
which allows trial judges to super- Terry Pierce of Mobile shows her su for the death
sede a jury’s verdict and impose penalty outside Holman Prison early Friday morning during
the death penalty. Each said the the execution of Henry Hays. Both supporters and oppo-
nents of the death penalty voiced their opinions outside the
Please turn to HAYS, 2B prison in Atmore.

ASSOCIATED PRESS

le OT SE AE

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Ad

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Mut gor


HAYS

q d from page 1B

a law should be changed.
e “Personally, I think if a jury de-
Jin cides a man’s fate, then one judge
a shouldn’t be able to change that re-
 gardless of what the law’ says
t now,” said Green, who said he
Ta, plans to attend law school.
L8¢ But Green said Hays deserved to
‘je ‘be executed because “what this
‘man did to another man,... merits
—— ‘the death penalty.”
} “(Donald) was basically kid-
‘(Uo mapped from his home ... taken
21984 across the bay to Spanish Fort and
I, ‘\gbeaten 120 times with a limb,” said
Uatqc Green. “They didn’t know whether
]Uray, se Was dead or not so to ensure he
Oroga Was dead, they slit his throat and
' —*", prought him back and hung him...
, 20t in 1881, but 1981.”
Several feet away, two members
of Norwood Assembly of God in
’ Mobile stood next to their van and
’ answered questions. Involved in a
brison ministry program, they said
2Uven the worst people deserve com-

JYM Burumouy plaeq :..Mo
: t 4 I
WIN. Apuw atm 1m a les

passion and understanding.

Some of the church members
met with Hays on Monday night in
the “Life Row Church” at the pris-
on, where Donald Blocker said the
condemned killer ‘‘gave a brief tes-
timony to the fact that his life was
put in order.”

“Henry at this time has contin-
ued to say that he did not commit
this crime,” said Blocker. “Henry
said that he has asked God to for-
give him for any sin that’s been in
his life and any wrongdoing that
he’s had.”

Blocker said Hays indicated that
his “biggest fear in life was not of
death but in being alone at the
time of his execution.” He said
Hays expressed appreciation to his
fellow death row inmates, who sup-
ported him as his final hours
ticked away.

An opponent of capital punish-
ment, Blocker said he lives
“according to the Bible as best I
can on a daily basis, and the New
Testament tells us to forgive and
that’s what Jesus Christ did.”

~iravyw Mt OL Guy yo

PISHIIPA pw aan sans _!.

|
|
|
|
|

. upbeat”

2A Friday, June 6, 1997

‘*

Montgomery Advertise

CONTINUED FROM 1A

NATIONAL

KLANSMAN-

from page 1A

and reviews of the facts and the na-
ture of the crime and the reported
decisions of the Alabama Supreme
Court, as well as ihe various appel-
late courts which have upheld the
original verdict, Gov. James has
decided to deny clemency to Henry
Hays and proceed with the execu-

‘tion scheduled for 12:01 a.m. Fri-

day,”
said.
Hays was moved Wednesday into
a special holding cell near the exe-
cution chamber, where he made
plans for his final hours.
Department of Corrections
spokesman Charlie Bodiford said
Thursday afternoon that Hays gave
away his remaining personal pos-
sessions, met with friends and rel-
atives and declined a last meal.
“He had some Church’s chicken
on Wednesday night and said it
was pretty good,” said Bodiford,
who has known Hays during his 14
years on death row. ‘“‘He just didn’t
want anything to eat today.”
Bodiford said Hays remained
throughout his final
hours and gave most of his posses-
sions, including an extension cord,
watch, roll of packing tape and a

the governor’s statement

grocery bag filled with other items,
to death row inmate Mark Jenkins.

He said Hays also returned a ra-
dio he had borrowed from Jenkins.

Two grocery bags of personal let-
ters and $75.24 — the balance of his
prison deposit account — went to a
friend, Charles Blanton, who was
to transfer the money to Jenkins’
account, Bodiford said.

When Hays was_ interviewed
Wednesday, Bodiford said he was
asked to appear with the con-
demned prisoner, but declined.

“He asked me about the news
media and said he wanted me to be
on camera with him, but I de-
clined,” said Bodiford, who has
spent the week fielding telephone
calls from reporters throughout
the state. “He said he didn’t envy
me for what my job was.”

Hays’ impending execution
spawned comments from several
groups opposed to the death penal-
ty, including one organization that
said Hays had “transformed him-
self’ since he was sentenced to die.

“He now considers the black
men on (death row) to be his broth-
ers, and he has been confirmed in
the Episcopal Church,” said Chris
Byrd, a spokesman for the Ala-
bama Commission to Abolish the
Death Penalty.

Byrd said his group believes that
use of the death penalty in states

such as Alabama’ ‘‘teaches ... citi-
zens that life is cheap, that vio-
lence and vengeance are acceptable
ways to redress a wrong.

“In 1997, Henry Hays has learned
that there is a better way than ha-
tred and revenge,” Byrd said. “‘The
state, however, by being in the
business of killing, refuses to em-
brace that lesson.”

Assistant Attorney General Joe
Marston, who prosecuted Hays,
said this week that he has never
been a major advocate of the death
penalty, but he said Hays deserved
the death sentence.

Marston said the Donald murder
was ‘fas monstrous a case as this
state has seen.”

Bryan Stevenson, director of the
Equal Justice Initiative, which has
taken on several death row cases
in recent years, said Thursday that
an “underlying issue” should be
addressed in the execution.

“We ought to be concerned that
73 percent of those executed in Ala-
bama in the past 20 years have
been Afrjcan-American,” said Ste-
venson,*who is black.

‘His efforts on behalf of death row
inmates has earned Stevenson a
national reputation.

Of the 15 men executed in Ala-
bama since capital punishment
was reinstituted in 1981, 11 were
black. .

LIFE

from page 1A

part to help put an end to Hitler’s
reign of terror

heavy toll against the Allies in the
air and on the ground.

P-47 pilots took some measure of
comfort flying against the 88s, be-
cause their airplane had a reputa
tion for toughness.

sey .

es. Ships on fire meant that shore
gunners were sometimes finding
their mark.

He occasionally glimpsed friend-
ly soldiers pitch forward, face
down in the surf and make no ef-

U.S. aircraft carrier rescues
stranded Canadian boaters

KNIGHT-RIDDER TRIBUNE

NORFOLK, Va. — The waves
were almost 30 feet high, the water
was freezing and three boaters
floated aimlessly in the Atlantic in
a bright orange raft,. desperately
needing to be rescued. ;

The USS Stennis was the closest
source of help.

On Thursday morning, officers
aboard the Norfolk-based aircraft
carrier - which is doing training
exercises off Martha’s Vineyard,
Mass., as it heads to Nova Scotia -
saved the stranded boaters’ lives in
a dramatic effort.

“This is what we get paid for.
When the call came in, we were all
ready,” said Kevin L. Baker, petty
officer 3rd class. Baker was the res-
cue swimmer sent down on a 60-
foot hoist to pluck the boaters off a
6-by-6 raft that was more than 100
miles from shore.

After the Coast Guard alerted
the ship at about 10:30 a.m., the
carrier dispatched a Seahawk heli-
copter and a crew of five. It took
the helicopter an hour to reach the
raft, which was 140 miles east of
the ship.

None of the boaters, all from

‘ wiek Canada, knew
th.

ASSOCIATED PRES

A crew member of the USS Stennis escorts one of three
Canadian boaters the aircraft carrier rescued from the icy
waters of the North Atlantic on Thursday. The boaters wer:
stranded on a life raft following a boating accident.

waves, the raft flipped over, plung-
ing them into the ocean and forc-
ing them to claw their way back
on.

Back on the helicopter, Baker
got a reception like none he has
ever had.

“They were just so happy to be
out of the water,” he said. “They
were shaking mv her? ™

Trane 1 '

To Baker, the rescue was thril
ing but all in a day’s work.

“T did what I could do. I did whi
I was taught,” he said.

The boaters, said to be emotio:
ally and physically exhauste:
were taken back to the Stennis an
are being treated in the ship’s ho
pital for exposure and hypothe
sie Mane was seriously injured

Victim’s brother
has no forgiveness

By Alvin Benn
MONTGOMERY ADVERTISER

ATMORE — Moments before he
met his maker early Friday morn-
ing, ex-Ku Klux Klansman Henry
Hays whispered words of love to
the brother of a black teen-ager he
murdered 16 years ago.

What he got in return was a cold
stare and nothing close to forgiv-
eness. after
mouthing “I
love you” to
Stanley Don-
ald.

“If it was
left up to me,
I would have
pardoned
(Hays) just to put him in a ring, me
and him, one on one for 15 rounds
and just whipped him the way they
whipped on my brother,” said Don-
ald.

“To death?” asked a reporter,
during a news conference a few
minutes after Hays was put to
death in the electric chair for his

INSIDE:

= Church mem-
bers, inmates
gave Hays sup-
port. 1

role in the beating and hanging of
Michael Donald in 1981.

“T don’t know if I would have
killed him, but I think I would
have whipped him, where he
would have felt like he was dying,”
said Donald, 43, whose candid com-
ments reflected the pain he and his
family have endured since the bru-
tal murder in Mobile.

Hays, 42, was pronounced dead
at 12:18 a.m. Friday — eight min-
utes after Holman Correctional Fa-
cility Warden Charlie Jones push-
ed a button that sent 2,050 volts of
electricity coursing through his
body.

Donald was abducted from a Mo-

’ bile street by four Klansmen and

beaten to death before being hang-
ed from a tree. Outraged relatives
of the victim sued the Klan group
responsible for the slaying and
forced it into insolvency.

Hays, who was the only one of
the Klansmen executed for the
murder, had asked that no autopsy
be performed, but Frank Griswold
of the Department of Corrections
said the examination is “‘standard

AyJERT 15E a

LLOYD GALLMAN/STAFF

‘If it was left up to me, |
would have pardoned (Henry
Hays) just to put him in a
ring, me and him, one on
one for 15 rounds and just
whipped him the way they
whipped on my brother,’
Stanley Donald, the brother
of Michael Donald, tells re-
porters Friday after Hays
was executed.

procedure.” The autopsy was done
Friday morning.

The execution, scheduled to have
begun at 12:01 a.m. Friday, was de-

Please turn to BROTHER, 2A