Alabama, H-J, 1884-1996, Undated

Online content

JACKSON, Jesse Fra

seeds eed PI iber beter t

fo94 of Ve years In prison and $10,000]
Stage cach in fines, The original 1L got
eae the full five years, except for one
ye aeag defendant who got off with three
aeyesg years because of a gallant World

eter)
obs

War If record,

ga The 13 defendants—only four of

jeietea them native Americans — took the
. aiverdict with no outward show of

yemcmotion. They were quickly and

sedetmieirmly refused further freedom on

iat renal while they. appeal the verdict

eee
eat re]

“4

i a legal procedure that could de-

nst them for
# The defendants smiled, shook

plands and waved to friends as

Herahey were hustled away {& deten-
gion houses, The 10 mal fend-
wnts were handcuffed but}the/three

tie :
lay punishment agai
2 emany months.

4°
oP

a Oe

jivisions of the j\arty, else

“peemerved on party ard were
pas ba arty educatars.

30% The Areesien m. Wefendants

4 i Gurle Flynn,

Johyson, 46,

nnon,/ 43, and

eir Pirthplaces

an, §l\JGeorge
Blake Charney, &\ Jad lindel,
i eye, Alexander Le Traci enberg,
eat Rog, and Willi old Weinstone,
ae rvs W293, all from RusSas
about mien Betty Gann £4, d Victor
’ ciqgeremy Jerome both kf Poland
ak S, BENa BriNsh sub-
rate cet: and Leo Weinxtock, 48, from
“g -@epal un gary. ;
akg; e ains Are Pr ted
in City Arez day

s and rain are
ama for today,

§ Ht Mbredicted fors Als
aveatherman say
7 The variety 0
spiled for Mont
@pureau at Danr

fdrecasts com-
ery's weather
y Field began
: a.m. with a
N and cooler
skies are
budy, and late
pected.
reported

CS Syd

i Clear

ere
vgrom all wea \tations in the
Epp ate Fees wa NO uscle Shoals’

skie

@qtl degrees was\ow for Alabama.
<4) Montgomery hi a high-low of

9 and 44,

me
7

Es 4
adi

nounced
h Israel

ur Atlas Will speak

“Are Y@M lappy?”
be held by Congre-
Isracky'riday at

neg Shabkt will be
stry pan follow-
nd Low Cooper

Kid@ft#h,\ Services
awd d.m. Sat-

Hee wntne services
# * dhs eae FM
ais ‘ill ch

Miss Mary }

aS. liyabeth Gregory
eheed to state c

n ginners who

By NN coro Man

Rapist fs Tracked

By JAMES LANHAM
An unidentified Negro raped a
young white woman at her home
on Perry Hill Road here yester-
day while her four small children
hid in another'room, Police Com-
missioner Earl James said.

James quoted the woman as
saying the rapist entered the
home through an unlocked back
door, choked her into submission,
and raped her,

The frantic call for help came
to police headquarters at 11:05
a.m., police officers said.

A score of police officers and
the woman’s family physician ar-
rived at the house within minutes,

Bruised marks on the young
victim’s throat were. left by a
belt or cord which the man used
to choke his victim, James said.

Dogs from Kilby Frison joined
city, county and state police who
converged near the scene of the
crime to search for the man.

A trail was struck near the
house but the dogs lost it after an
hour of slow, tedious tracking.

The Negro, described as 18 to
20 years old, weighing about 160
pounds with medium dark com-
plexion, and wearing blue over-
alls, assaulted the woman short-
ly hefore 11 a.m., the commission-
er added.

He forced the housewife to sign
a check in the? amount of $50
fo he raped her, the woman
said.

Hospital attendants where the
victim was taken for treatment of
shock and bruises said laboratory
reports ‘definitely showed the
woman had been raped.

More than a dozen police cars
Which operated under the direc-
tion of Commissioner James and
Police Chief G. J. Ruppenthal,
picked up a number of suspects
in the area, police officials said.

Questioning of the suspects was
being carried on at press time
last night.

Tracks leading from the scene
of the attack were followed by
officers until passing traffic made
the footprints invisible.

Fingerprint men from the city
police department dusted the
room and doors of the house
where the rape took place. No re-
port was given of fingerprint
tests results.

Dr. C. J. Rehling, state toxi-
cologist, was brought on the case
yesterday afternoon, Commission-
er James said.

Auburn Sororities »

Pledge Four Coeds

AUBURN, Ala., Jan. 21—Four
API co-eds have been pledged by
sororities during open rush,

They are Mary Millicent King,
Mobile, and Billy Mitchell, Mont-:
gomery, Theta Upsilon; Maryan
Majors, Gadsden, and Betty
Queneile, Anniston, Alpha Omi-
cron. Pi;

eer ear SIRO OP RETO CLA NOOR RE tet mm e

Whats

CiCipne CV THEE ban
Harry §. ‘Truman used io Betj
going, a

Hits Office At Eight

Eisenhower showed up at 8 this
morning with only a few hours
sicep in his first night in the
executive mansion. He and Mrs.
Eisenhower stayed out late at twin
dalls which climmaxed yesterday's
inaugural ceremonies. It was after
2 when they turned in. -

As Eisenhower began getling the
feel of his new command, it ap-
peared that the smoath transition
he and Truman tried to afrange
was working out fairly well.

Physically, the same equipment
and a good many of the same
clerks, stenographers and career
Officials still were on the job at
the White House—same Secret
Service men standing guard; same
furnishings and pictures in the
lobby of the executive office; same
aquarium with tropical specimens
still operating in the “fish room’’—
a sort of reception hall.

Press Secretary James . Hagerty
Said regular White House news!
conferences will continue. although
perhaps with occasional innova-
tions in these days of television.

Familiar Words Heard

There was a familiar ring to

‘|words of the first White House}

caller from outside Eisenhower’s
official family. :

Bradshaw Mintener, Minneapolis
attorney, dropped in to see the chief
executive and told reporters it was
“purely personal, purely social,”
Mintener, who directed the cam-
pain which produced a huge
write-in vote for Eisenhower in the
Minnesota primary last March,
was accompanied by his wife..

In mid-morning, the President
agreed to greet Coloradoans who
had come here to march in yes-
terday’s inaugural parade. Filing
into the office for a handshake
were members of the Denver
Junior police band and a Shriners
patrol which rode palomino ponies
in the procession. The patrol mem-
bers were still wearing their scar-
let sombreros and black and white
chaps. : “
Two Governors Call

A pair of governors, Dan Thorn-
ton of Colorado and Walter an
Kohler Jr. of Wisconsin, were
Eisenhower’s first luncheon guests
at the White House. Sherman
Adams, assistant to the President,
made it a foursome.

One item of official business was
transmission to the Senate of nom-
nations of former ‘Sen. Ilenry
Cabot Lodge of Massachusetts to
be chief U. §, delegate to the
United Nations and Harold Ee,
Stassen, one time governor of Min-
(See NEW PRESIDENT, Page 6-A)'

nk, black, 23, electrocuted Alabama (Montgomery) June }), 195).

‘ne

IKE AND MAMIE .
hower and the count
cony at the Nationa!
one of the inaugural!

Legislative Grou

Heed Pure!

‘Alinest Cr:

A legislative comn
Bryce State Hospital for
practices there so bad ;

In a tentative drat
said it found purchase
handled in a very “h.

|manner.

The report cited an e
one staff; member's f
three which, hospital
showed, requisitioned as
123 3-4 pounds of st
month.

Staff members are a
requisition food through
pital at wholesale prices

Committee members
ized the spending of at |
000 to renovate the 15-
perintendent’s home ox
Dr. J. S. Tarwater and
late in 1951 when there .
a dire need of addition
ings” for patients.

They said the renovat
ordered after Dr. Tary
peared before the State
Commission and reques
000 for building purpos:
institution.

Committee members
was “to say the least iil

The report noted ‘tha
of three previously ref
requisitioned one mo
pounds of butter, 501% p
stew meat, 35 gallons o
105 dozen oranges and 3:
of coffee. 3

During other months ;
random, the report said, !
ly requisitioned 16 px
grits, 56 heads of lettuce
pounds of ham.

The committee said
records showing the food
tioned and_ delivered
members was ‘so exhor!
to be almost criminal.”

Earlier the group wh
been studying the Aiab
(See FOOD PURCHASE, P

U.S. Jet Pilots

Pursue iM y:

Of Lights F lying AtH Loh,

By WiLLIAM C. BARNARD

A U, S. AIR BASE, Northern
Japan, Thursday, Jan. 22 UP—
Strange clusters of red, white and
green lights’ flying at blinding
speed have. been chased twice by
U, S. jet pilots over Northern Ja-
pan, the Air Force said Wdenes-
day.

The

hurtline ratatine eluetave!

Conine immediately hac
in pursuit, but quickly |
tact.

Seen By Others

The flying lights were
other airmen aloft and by
ground personnel, said Co
R_> Low. commander of th
ern division of the Japan

ae Liceul, Hla _ Yils9s- Ones Madge, Colored lite Maing Aes

~ +

(

heewG wear 2enGG "Ud Ian XStiky UR Y/SJE IZ

vovtotey dbbbiibe, abet was cnbivoly with
but provocation, ho victim of tho
murder was a young nogro girl scarcely
15 yoars of ago, and tho fiondish mur-
deror a burly neyro man of 23.° John
Holiness for somo months had’ boen
onanored of this girl, end the intimacy
had beon of ucriminal nature... Ifo had
prossed his suit with matrimonial in-
tentions, and the frionds of tho girl re-

volted ugaiust a union on account
‘ofthe worthlossuess of the wretch. The
girl “‘oaly~ received © his attentions
through the fear of Lim. *Tinding that
ho not was*likely to win her'haud in
marriage,he was angered aguinsther and
made.threats against her life’ repeat-
edly. On tho illfated modrning in April
whilothe hands-on Mr, Alley.’ Davis’
plantation wero chopping cotton John
came into the field, gun in hand, with
the avowed purpose: of carrying into
j.execution his many previous threats.
The girl pleaded most pitegusly for her
lifo,..,but “© “despite her’ ‘ pleadings
this“demon bent ‘on ‘the commis-
sion. “of \ his © diabolical :- crime
tumed a deaf ear to all her ontrenties.
The quarrel previous to the killiug
lasted for about an hour, *he all the

time cursing her ina most cruol man-
“|ner: She was in a crowd of hoe hands
*)and with the command ‘for them to
| “scatter,” he singled her out and fired

AWorld

pra orld
Sere Rg T1022:
Ratti? have
Ga) is'for
eA for

paris

eit ig OF

RTE

(with ‘an’ oath) “you:-shall marry no

h—l with you.” He mado-no attempt
>| to get away and whon Mr.Davis arrived
| did not resist. arrest. Ile’ was consid-
ered “amoung ‘the’ ‘negroes -of ‘the
place’. a): desperate {man "and
alls Cof } ithem ~ were “airaid ‘of
-| him,”!*'The weapon: used was a single
“| barrel gun, loaded with a corn cob for
the purpose, in tho absenco of shot.
The charge taking effoct in the neck: of
the victim, caused death ‘almost in-
stautly. Ho was tried aud” convicted
at the fall torm of tho Circuit. Court,
was defended by able counsel, and had
a fairend impartial trial, and Judge
Moore’ prénounced tho sentence of
death upon him on the last day of: the
court. ‘he sentence throughont was
oue-of the most ftecling ever listoned
toby the people of this’ com-
munity, -:yot the prisoner. listen-
ed! iwith: a stolid, «-indiffer-
ence.'that:was disgusting.” During
most‘of his “incarceration be has been
jnorose gud suilen, and not at all com-
municaiive? nor inclined to tall, but
has since been more. thoughtful, and
expressed yesterday to’ Kev. -W. H.
Richardson, - of «the © Presbyterian
church, the belief that he had gotten
se... | forgiveness tor his crimo, and realized
Dh tlie’ sentence.’ Sheriff Nelms has’ been
yory -kind to him,’ and has tried to
grant. bis wishes since his sentonce.
Oue was that: tho scaffold be built
whore ’he - could see its. construction,
and “another, . ° to. have ae his
picture /‘taker. > For two days the
Kind hearted Skoriff has procured und
furnished -his iweals from the hotel.
Thus John ‘Holiness pays the extremo
penalty of the law for his crime, and
‘adds another to the name of criminals
in this county.. © 0 .* aa eaee

hie
ene pie blo
eA.

+3 Big an-
ey ibn.

; : “Brewton Neics,
“Brewton, Ala., Noy. 22.—We note the
funeral to-day, of Miss Minnio Beck,
*| who died’ yosterday of typhoid fevor
“1 after.an illness of two wecks. °° Pee

She was a charming young girl’ just
merging into womanhood with’ many
estimablo graccs of mind and heart,
and tho idol of a largo circle of friends
and loved ones, ' get vee
Pale lips and

in gad procession to the gravo this No-
vember morning—but we know our
‘beautiful flower, nipped so carly by tho
unexpected Autu:n frost, blooms anew
in perennial bowers. i,t

. Choctaw County Chips.

‘Boruer, Nov. 21.-~Marriuge license
é | were issued from the Probate oiivo to-
| day to Mr. J. Wesley Johnson'and Mrr,
‘1H. Brewor. and to Mr. W.’ K.|-Christo-
-Awhor und Miss Kato. Young. «Lhe for-

t itn he Se Se Re :

?,| tho fatal shot, saying when ho had fired’

‘| other man and nowl am ready to go to’

the: enormity of: it and-the-Justico of.

white flowers and sighs’
and tears and gloomy hearts. mingled,

Critic Co iageh Pioowan Cat ia tho
mowntalusabe abl two miles frou Gads-
den. When cou shit, ho was well armed,
but, of course, resistance wags Usoicss;
and to-day the hounds, five of tho fest
in this country, were sold to the covu-
ty authoritics hy ltourd aud: Smith tor
$350, which was vory cheup, indeod. .
HUNTER CONVICTED. : z
A Notorious Gubler and Tough Citizon
Se isaes Downed nt Last 5 eee!
‘y oe ){Binninghum Ago-Horuld.} °-,'.7;
THarry Tunter’ was -yesterday, con-
victed of an assault with intent to
murder. The circumstances of the at-
tack on young Waltors, arailrond mun,
several months ago ‘are’ familiar to
newspaper.readors of this city. Judgo
Greene has not. yet passed sonteice
but will do'so one day this week.
' Harry Hunter has ouly lived: in Bir-
mipvgham about one year, but lis con-
duct haus been such during that time
that he has gained no little notoricty,
Jie has been wu gamblor all his lifo and
for anumber of yoars was proprictor of
ove of tho most. flourishing houses iu
Montgomery. After the Stato law
against keeping a houso for. gaining
purposes went into effect he left his
old home and came.to this city. where
ho: was, until his late © incavcera-
tion’ in * the county jail, a source of
great'troublo to tho, police. Hunter's
first ‘troubles’ bere. grew cut: of
his -intimato,.relations with a well
known womazn of the town,and for an
asgaulton her was put on the streets
for somotime.. Ho was finally paid out
by his.good father, who isa respectable
cilizon of Moutgomery county. Hun-
tor has always managed with a wonder-
ful. shrewdness to get out of Lis troub-
les, and his conviction yesterday was a
surprise to those familiar with Bis nn-
savory: record. :Iiunter is abnut 40
years ¢ld ane is unmarried. ° His fami-
ly connection in South Alabaina nuin-
ber some of them among the leading
families of the State.- Ota dette Sho old
Democratic Democracy,
Editors Advortiser.

Lsee.in Tue ApverrisEer *of the 20th,

Rey. C..W. Hare makes a plea for fair

play, and indulges the hope he will not
be considered fanatical. I thank tho
Lord I never saw my father, . or broth
er, or son, drunk; nor was ever drunik
myself. » And, therefore, foel that J am
impelled by purely philanthropic mo-
tives in what 1 do for the cause of
Semperance. Some of us went to tho
Democratic Convention of 188) and
made en effort to get them to recom-

mend that the odious statute that al--

lows twenty men to dominato- a thou-
sand (should there be that many in the
election precinct,) be so amended as to
reud a majority, but the Comimitteo on
Platforms and tho convention us a
Whole said: No. we are afraid it will in-
juro the party. Lamentable state of af-
fairs thata party having a headred
thousand majority in the Stato, could
nut afford, to bé just, to do right, for
foar tuey., would: Le overrun by the
Radicals! I had rather see Alabama
subjected to the worst rulo’ she over
witnessed than to see one boy made a
drunkard, if that one boy was my boy.
L see bills are being .intreduced from
all quarters to prohibit the sale, + dnd
some to repeal prohibitory Jaws, Ana
{ lcole’ on’ with astonishment and asix
nuvsclf the question why is it that, a
civilizod poople’scoing the vast amount
of trouble ‘and sorrow growing out of
the whiskey tratlic, will not stop them?
Is thero not a man in the prosent Logis-
lature who cannot look around him and
see some brother,. some, ucighbor, - or
fri¢nd who'bas not been injured’ ten-
fold» more by the whiskey trattic than
all the balanco of the citizens of the
State have been benetited by it? Why is
it thata great andyrand party, like the
Democratic party, in the Stato of “ Ala-
bama should Jean to the side of vice,
instead of virtue, or why she should
notstand up asa father in his own
hocsehold nud mote out justice to. all
alilo though the stars should’ fall, is
beyond ‘ the conception of one so
fantical or, cranky -as your humblo
servaut, =. op wy PouNX C. Os. .

VU N eee ate way
wid daw timed piety Le
orm Slates, and intonded e
their reprosontation, must be?
with great care, it fears, in ora
avolad- the Coustitutional objcctic)
stuted =. in recent: decisions — ot
tho. Supremo Court---a court, by the
way, Which, oven bofore: its Inte ac.’
cessions of Democrats, hold that the:
uroater part of Sumnor’s* last civil’
rights bill was unconstitutional, “What
under thoruling of the Supreme Court,
ean Congross do?” disconsolately asks 5
the iribune. “If Geuator Ingalls has-”
some good.and effective plan to enforce;
equal yoting’ rights. in the South,-ho
will deserve tho lasting gratitude of
all Republicans, aud .the Tribune will 7
cndeavor to see that the author’ of a;
sehemo.so valuable shall reecive full
popular appreciation, She Ingalls doc- °
trine is sound aud just, but how can it:
be enforced?” Deleat ; slaved
The prospect does seem’ very prom
ising to it, and it allows its “rage at the;
helplessness of the 'party which “has.
heen swearing to reconstruct tho.
Southern States as soon as returned to’
power to discloso the diabolisin of its
malignily against the South in the fol-
lowing outburst. . we Ne
Tho source of trouble is that the’ Ne 3
blacks:will not fight’ for themselves \:'
and auyicoercive power to enforce their |
rights niust be used from tho outside. 1":
White men or Indians situated as the:
Southorn negroes are would make the wf
rivers of tho Southvrvun red before they «;:
would submit to the usurpations aud »
wrongs Which-the. blacks passively en-35 '
dure. Oppressed! by: generations of :'
slavery, tho. - negroes: are non-combat-
ants... They will: not shoot) and burn
for -theiy ‘rights.’ They lack “even
the coambativeness: found ‘in ‘the
women. of: the races ‘long accus-!,
tomed to frecdom * .* * ‘The
negroes will net fight except in asso-' ;
ciation with.and under the leadership
of white: men. Wherever there isa
considerable portion of waite Republi-*,
cans ready to fight, if necessary, for a,
free ballot and a fair count the negroes ,
can und do vote and have their ballots +
fairly counted; but if left to them,
selves they . aro helpless even where
they are in av! vast majority. In what
manner can.outside federal power bo:
brought to bear to sceure the rights of *
negroes in States where they cannot 4
act in association with or. under the,

‘
aie Ee

"
ted 8 By.

leadership. of white mon?~"That is the.

great question. Will Senator; Ingalis }
cast light upor it?” ,

Thisis at onco a reproach to the no
yroes for not attempting to deluge the :
Soutb with biood, and un instigation to )."%
them to adopt such a courso in the fu-_ 5
ture. American journalism bears no:
blacker blotch, end it would be truly a,
one-sided law which would hang an
Anarchist for urging his views through
the press, aud which would permit the.

wrote this to continue ,to-

Coruna, 8. C., Nov. 23.—-The Stato,
Board of Canvassers has at last con-.
cluded the caavass of cil the State aud":
Wederal returns and hus declared the
result, which is the clection cf the en-

{ire Democratic Electoral ticket by the
following vote: a

Clevelend, 65,825; TIarrison, 13,740; ; ni
Democratie majority, 52.085. ho total =,
vote is 11,032 less than four. years ago.

The Democratic majority is 4,054 great-" {,

er, Democratic Congrcssinen ure elect-

alin the seven districts of the State,’

The contest in the seventh and Blacle: 0.71
district having been decided by the 277
State Board.in favor of Col. Wm. Ellie. 0%
ott, Lhe present’ incumbent, who is’ ro-, ¥

‘looted by a voto of $858 to,7,003 for

Millor, his colored compotitor. + ;,
ok Pond Offerings.
W AstuinaTon, Nov, 23.—Boud offering 8 *
to-day ‘aggregated — 5192,060, accepted
389,000, four end a halts at 109}. 4

ides
19%

ss 2

aan tn Las ta ena

a
De “ky

[11:1

i &D' 4710 os

ULER. & co.;

Var}

shee

a BRS. urs
RT ba

+ UNDERTAKERS.

WEEN REGISTER “or
TTLE HOUSE.) **!.°~

‘of Carria es, Hearses
‘efound in U iscountry.

16 Of UNDERTAKERS’
rom the best Manufac-
are spared to arog: this

none.

el
WROUJI ON,

DIRECTOR,

» for, au Cbeistiinas oh

VEROWs OARMELIOH:

ARMELICH,

‘ “animal paradise.
'teder
om pasturage dally. —
‘iculars Call at "

i! ROYAL *STREET..

w water, plenty of ‘Ane
nthe bay; no mosqui-

ACG-.
Terms moderate.

(TE THEATRE). . my25
CERIES.? * °
COATT C: HIG A, GO 0: >:

SOLID “ROOD. “FOR

EVER. KNOWN.

oneaper than Cribs,’ ~
Publ CURED

‘er “Pork, (the ‘Favorite
rere) Se me camming apex
BPS SAWS S

seer vs INCREASIN Ge

hema'c or will order for you.

top ‘obs

TED.

KER ‘BOTTLES,

«pers th ioe

: WHICH
gay ate:

wwe, Ormoulty x me ) where to

PAO na ch ioe

H oR eat} Me et

LOOG.

Goes he

UNDRIES.'

LAUNDRY,
Ht ROYAL STREET

Hote, NUE UP AN seeing, UY Wenecda ok
ton pbod fe chee disense by redueligg the
pationt’a ability to resistit. Now a-days we
ado not tour down tho fort to help the gurri-
son—we strongthen it.

‘In this intelligent and beneficent work, it 1s
conceded that PARKER'S TONIC leads. all
other medicines, As an tnvixorantit acts im-
mediately and: powerfully upon the circulation ~
and. the organs of digestion, thus giving
Naturo the assistanco shocalls for. Itfollows
that all ailments of the ktomach, Kidneys and
liver are at once relluved or cured. No other
preparation einbodies the same qualities or
produces similar results. It is delicious to use,
and the best known antl-intoxicant. Price
50c. and $1. Tuscock &Co., New York. i

1 auléseoc]m _

1S Asner | This BELT or Regenera
ieee iss "tor is made expressly fer
& the cure of dera
ments of the genera
organs. There sno mis:
Jtake about this tnstra-
ment, the continuous
~ ' stream of ELECTRICITY
ull permeating through the

Ln We

arts must restore them
healthy action. Do
me not confound this wita

Electric Belts ONL to cure all ills from

head to;tos. it Is fer the one specific purpose.”
ned circulars giving full information, address
the Cheever E!

ectric Belt Co., 103 Washington
mhét!

st., Ohicago, Ml. insatudcly

BAKERY.
Beesany. KLO.TZ: &-C0O.

t -¢-

{BERNARD KLOTZ. ;
P. A. JOYCE.

™ M ANUFACTURERS oF

CRACKERS,
Maccaroni, Vermiicellt,
ie : ETC: “BTC,,” ETC,

Nos. 14, ‘76 and 78 SOUTH PETERS STUBET,

[eat 20 NEW, ORLEANS, LA.
‘ aulo 8m of Eee P.O. BOX 2117

4 EARTIT CLOSETS.
0 WHOM IT MAY CONCERN.

SMALL FAMILIES, “STORES, WAREHOUSES
ioe Sons AND FACTORIES ~~:
; Will find it..

ANER

CHEAPER” “AND CLE

i ‘ f TO ‘ xe

aor. THE - “RARTH- BOX. SYSTEM
~ "And Abolish the Use of

| DEE AND OFFENSIVE PRIVY SAGER :

Siohed Particulars Apply to
WII. HH. SMITH,

auntte is Ee Cor. Conti and St. kmanuel.

: FOR SALE. .
| Fron SALE. Perera eet

A GOOD 2%5-HORSE POWER STATIONARY EN-
+. \GINE AND BOILER WITH IRON FRAME
é i iy SAW MILL.AND 80-SAW GIN, . «

“AN: EXTRA‘? GOOD BARGAIN.”

‘ We are prepared to do foundry and machine
work CHEAPER, quality considered, than can
be ‘had: elsewhere in- the: Southwest.’ “Cor:
Reengpnence s solicited.’ Addres

PROGRESS MACHINE WORKS,
* ausd&elm Meridian, Miss.

pee ‘NICHOLAS FOR SEPTEMBER.

WITH BE AUTIFUL, TLL
TEALTIY STORIES
Itis the vere Magazine to er into. your chil-.
bo Sega s ibrar % cents a copy; $2.75 @ year. -
Call on W. aw E. MICKLE,
Ladies’ News Stand,
“97 Dauphin, opposite Square.

OBILE STOCK YARDS, ;-° ty

aut

Have now on hand ‘ona for sale FIVE, GOOD

some GOOD WORK MULES AND HORSES, a
tull supply of BEEF CATTLE, and will recelve
on ‘the 20th of July A CAR-LOAD TEXAS
evouae AND ane 4 which will be sold low
‘or cash.

Jylitt “gl. L. MAUPIN & CO.
| roe cae
A FINE SPIRITED PONY..
on “Apply at
jeistt TUIS OFFICE.

is felt as to the result.
Greys ure coniident they will gota prize w.

7 with lynching.
GEO. E. “COURTIN.

ILLUSTRATIONS» "AND i

NATIVE MILCI COWns WITH YOUNG OALVES, .

HOLLEY , Scip, black, hanged Tuscaloosa, Alabama, 8=29=188),,

About pore vy HL bei nbs

HK GREYS RGLULN JLOME,
Nothhig detluite liere to-night, so: far,

from the Louisville drill, and deep interest

The friends of the

the}

Later—News received here to-ulght leaves
no doubt tbat the: Greys won the second
prize of $1,600 at Louisville. Sky rock-
ets are being sent up and there are gencral
manifestations of rejoicing. The train on
which the company is expected to arrive,
isan hour anda half late. The boys will
be received at the depot’ and escorted to
a armory by local companies.

PEN SACOLA » FLA.

TH MILITARY ENJOY A SENSATION WHICH
: PROVES TO BE A HOAX.
[SPECIAL TO THE REGISTER.

PrnsacoLta, August 29.—There was
quite a flutter of excitement among the
members of the Escanfbia Rifles to-day,
caused by the report of a telegram hhving
been received by Capt. Brent, notifying
him to have his command in readiness for
marching orders. It appears’ that the
negro, Joe Williams, who murdered Con-
nor, the bridge watchman, was threatened
‘ Thereupon one .of. the
Escambia Riflemen started the report that
the Rifles would be ordered.out. “Many
of the Riflemen :have devoted the greater
part of the day in preparing for duty,

Dr. Fordham, President of the Board of
Health, is still a very sick man.:: : ¥

ABERDEEN, MISS.

EXCITING FIRST BALE CONTEST—RAILROAD

I. 2° AND MILITARY. NOTES.

[SPECIAL TO THE REGISTER. ]- :

' ABERDEEN, Miss., August 29.—There
was a hot contest here yesterday between
B.L. Hatch, Jr., and J. H. Flynt, two
successful young farmers, to see who
could get the first bale of cotton to our
market. Mr. Hatch reached town thirty
minutes ahead and sold his bale at fourteen
and one-half cents per pound, and Mr.‘
Flynt got -eleven and one-half cents for
his.

Mail and express service will be estab-

‘| lished on the Canton, Aberdeen and Nash-

yille Railroad to this place next Monday.
There is a good. local business on this
road, all the way up from Durant, where
the line joins the Linois Central.
- A new military company has heen or-
ganized in this county and is known as the
Hamilton Guards. They will use the
equipments of the old Aberdeen Guards.

: TUSKALOOSA, ALA.

SCIP ILOLLEY PAYS THE PENALTY FOR TIE
MURDER OF YOUNG SEALY.
(SPECIAL TO THE REGISTER.)

TuskaLoosa, August 29.—The crime for
which Scip Holley to-day suffered the
death penalty -was committed late in Janu-
ary of the present: year. His victim,
Luther: Sealy, was a prosperous young
planter living in the Hickman -neighbor-
hood in Tuskaloosa county, in whose em-
ploy Scip had been during the year 1883.
On the morning of the tragedy, Scip drove
a wagon up to the door of the cabin he had
been occupying and began loading it with
his household goods.’ During the past
year he had become indebted in some way
to his employer for a small sum of money,
and as soon as young Sealy saw what was
being done, he went out to the cabin and
told Scip that he must not leave until the
money due was paid.

Later in the day Holley, who had gone
off under the pretence of obtaining moncy
to pay the debt, returning with a ~“uouble-
barreled shotgun, and when Sealy re-
newed his demand for money, Tolley fired
upon him, the shot taking effect in Sealy’s
abdomen "and producing. death in a few
hours.

Halley tied and was captured after several
days chase in the swamp of the Warrior
river. IIe would probably have been
lynched, but the father of the murdered
young man, insisted upon the law taking
its course. Ilolley had the benefit of a

eT lee ok bisaeee QD et fle weate ds
me to die, Lb was forced: ag driven te
commit the crime. L did it betanse Lalm-
ply could not help it, Secing;and know-
ing what I did of my wife had made me 80
Jnad that t. was urn, d not know
What I was: doing. / $ at A} & Ihave to
Bu

Sa st scaffold to- day es Yotuaed to talk,
and inct death tirmly. The execution was
void of nny exciting Incident, © <:.j.5%.s

ACCIDENT AND CASUALTY. =”

“CYCLONE IN DAKOTA.

Yupson, Dakota, August 29—Noon ok J
small cyclone passed cast of this city yes-
terday, destroying everything in its path.
It was several hundred feet wide. . The
storm formed three--miles north of this
city and travelled {n a southeasterly direc-
tion. The residences of: Jas. Bloodgood,
Marvil Cook and George: P. Cook -were
blown to atoms.. Mrs. George Cook and
child were carricd several hundred fe t
and badly bruised. :'Points:in' South Da-
kota report having seen the storm passing, |
but no results are giyen.

Sroux Fauzs,’ Dakota, August 29.—
There was no damage here by. the storm
yesterday.- A farmer’ named Briggs, six
miles north of here, lost thirty head of
cattle, three horses, his house, and all the
outbuildings. ee. a a McKillery, five miles
north, while‘driving a span of mules, was
lifted in the air, and himself and mules
were killed... A -report: from Diana says
the storm passed four miles west of there,
sweeping 80 yards wide, » Four dwellings
and several other buildings were destroyed .
A large number of persons are srepgreee
killed. : .

HURRICANE aT EVANSVILLE, INDI ANA.

EVANSVILLE, August 29.—At9 o’clock
this morning the most destructive hurri-
cane ever known here broke up onthe city,
doing damage not less than a quarter of u
million dollars: in-the city and vicinity.
Houses were blown down, roofs carried
away, three or four steamboats badly in-
jured, thousands of shade trees torn up by
the roots, and, other injury done. «It is
impossible to give the’ amount of dam-
age. Probably the heaviest individual
loser is‘ John H,- Rollker, whose new
foundry was almost. wholly . destroyed.
The steamers Josh ‘V.: Throp and Silver-
thorn were badly damaged. The forme:
was almost wrecked. Several churches
suffered severely, also one new school-
house. Reports have reached here thai
the transfer steamer Belmont was sunk
this forenoon by a hurricane near Hender
son Towhead, and twenty lives lost. Th:
report is not generally credited among th:
river men, who think probably she is dam
aged and ashore, but say the river is to
low to be dangerous. Nothing but rumor:
have as yet been received.

‘The storm lasted over an hour, the win
blowing a hurricane, changing from north
West to northeast. The Silver Horn, wit!
steam up, had her chimneys blown over
board, but the boat was not otherwis:
damaged. The steamer Two: States wa-
blown from her moorings, and driven th:
full length of the city. She landed at th
coal dock without any damage. TheJno
V. Thorp, which had just arrived, brok:
all her lines, drifted to an upper landing
losing her chimney, and narrowly escape:
burning. She was badly wrecked. He
starboard guard is all gone, and the uppt
works are badly damaged. The bay i
frout of the city was fall of barges, amon
them being the transfer barge loaded wit!
freight cars. The ferry boat was blow
on the bar, and is hard aground. No live
are reported lost. :

FALL OF A SCAFFOLDING.

Cuicaco, Angust 29.—The scaffoldin
inthe new Board: of Trade building ©
which six workmen were working gay
way to-day, and two men fell a distan
of eighty feet. One of them was instant!
killed and the other, was fatally injure:
The other four fell only a short distance:
and managed to save themselves.

STORM At CARMI, ILL.

Curcaco, August 29.—A Carmi, Il

despatch to the Daily News says a seve:

_ SOUT
MPT; ‘SERVICE AND LOW
svan send fine work to be
: Certainty’ that it will be
“perly done, =**

trial and an appeal to the Supreme Court,
with aresult of his sentence being con-
firmed.

wind and rain storm visited this place th
morning. Several buildiugs were dan

ve a IS COMING.
aged, and corn throughout the county w

THE WAY TO TO KEEP CooL

: “4 Importation and guar. 1s TO Scip Molley was a preacher, and conse- seriously injured by the .wind.: T
- ‘Se, 600, 500 and 30¢ ¥ 1b HAVE YOUR HAIR CLIPPED BY MACHINERY quently had much influence among the | dwelling of Wm. Seigler,’a farmer, w
<a funds to Box: $i Tea |. ar ; people of his own race in his neighbor- | struck by lightning and consumed. Ts

pr be Fans,Lacquerware +E * F,* hood. Iowever, his white neighbors had | of his children were stunned by the shoc!

° Phd * sa Py Psd 4 t

vata siete? mhl3 lygi eSSUnI KOVAL srhiee Ptnbimease but will probably recover. Mrs.. Jo

long looked upon him with distrust, ana

#,*e

BAMA,

SATURDAY. MORNING, AUGUST 40, 1884.

ALS:

ORNG

Agri-
Mont-
ilitary
test at

‘

'.—The
he Agri-
a report
val Col-'
‘quested
»chnical-
\ of-any
| of ‘the.
farmers

ug made
truck
lubs and
, Where
‘nethods
ed sare
scale at
yusiness®
athering:
mumittee
ales very,

amie
paration
farmers

Er aos)

made by

3 Expo-
| to aid
ic coun-
Exposi-
m.+No’
Legisla-
ppoint-
‘ @ loan
ise of the
ical: and
Orleans >
olection

nralv and,

property
mittee is

sislature -

“ald -loan
‘re urged
his pur-

{ kower
-Com-:

vention
© Betts.
iss fabro-

.: ‘Lhe
orted its
ittention
vise**the
he “com-
ruit-tree
st unan-
‘rop lien
he State,
: in-the
and.vote
‘nto :im-
is an-in-

The at-
rest pre-

he Agri-
1ostly of
nvention
again in
so far,
‘interest
!s of.the”
VELL Gn.
hit leaves
* second
ky roqk-
© gencral
train on
0 arrive,
hoys will
orted to

’

‘he had given evidence of being a violent

*.|to burn* down’ the jail, -in‘ the hope of

| raped: a little white girl at that time be-

several occasions previous to“the murder

man.‘* During his’ confinement in jail he
made several desperate attempts to effect
his escape. On one occasion he attempted

making good his escape in the’ confusion
caused by the fire, but his purpose was
thwarted by the watchfulness of the jailer.
The execution took place in’ the jail yard
and was witnessed only by the required
officers and press representatives... Soon
after! 10- o’clock. the .d6omed?man was
brought .out and placed on the scaffold.
He declined to make any statement as to
his‘-crime» and said that -he:did not
care’ to’ have '-his» mind ‘drawn off
from. his. thoughts of the furture.
As he - ‘stood -- on the: ‘scaffold
his’ body swayed to-and fro in’cadenced
motion, and he kept humming ‘something
which was entirely unintelligible to the
auditors. The drop fell at. twenty-five
minutes after ten and his neck was broken.
A slight‘contraction of the muscles was seen
aud the body hung motionless. .; In twenty
minutes his body was cut dowu and turned
ov er to his relatives. ; ~ ‘

-
iii

“CAMDEN, ALA, /

JOUN KELLEY, TILE NEGRO VEND, LEGALLY

. Seo. e EXECUTED,
2 tcarro inns UTSTER. }

which: John’ Kelley died to-day was com-
“mitted on''the'15th of June, 1882. He

tween six and seven years of age. He left
the country for awhile, but returned
shortly afterwards’ and openly defied the
authorities.“ Several attempts were made
to arrest him without avail; on. one occa-
sion’ he’ was wounded: in the foot’ with
squirrel shot, but succeeded in mak-
ing his escape.’ He -returned again to
his old haunts,’ and sent word: to~ the
sheriff.not to come after him any more,
that "heintended to die before he was
taken, and was prepared...Deputy Sheriff
Benson immediately: summoned a: posse
consisting of Walter R. Boyd, : Harris
Adams und Robert McCracken and went
after’ him: determined to bring him . back
dead, or: alive. .,They . surprised him
in his ~ house ae oe night and
took:: him after'' -a° . desper-
ate resistance,. during which he received
two loads ‘of buckshot into his. body;' he
came very near:killing Mr. Benson, firing
at him through the door at about ten feet
distunce.* Mr:\Benson was saved by a
post, the whole-load going into it.’ Kelley
was desperately’ wounded, but’was placcd
in a wagon and brought to jail. He re-
covered completely , : though ne kept, the
five buckshot in him.

The negro had two trials ok the benefit
of an appeal,-all of which legal-proceed-
ings consumed two years of time. He as-
serted his innocence at the trial and on
many occasions thereafter. : °

His execution was a quiet one and was
promptly carried out at the hour ap-
pointed, Hisneck was broken by the see A

SELMA, ALA. :

JIM M’KELROY EXPIATES HIS CRIME ON TILE
e SCAFEOLD.
(SPECIAL TO THE REGISTER.)

Setma, August 29.—Jim McKelroy, the
negro wife murderer, wus hung to-day.
He murdered his wife near Orrville last
fall. Ile was soon captured and tried.
His only’ personal plea of defence was
made when the judge was about. to pass
sentence upon bim, at which time he said:

**T do not think you ought to sentence
me to die. I was forced ‘and driven to
commit the crime. I did it because I sim-
ply could not help it. Seeing.and know-
ing what I did of my wife had made me 80
mad _that_I.-wag .craz andvid not know
what I was doing., That’s all’ I have to
say.’?

On the scaffold to-day he refused to talk,
and met death iirmly.: The execution was
void of any exciting incident,

= orate AND CASUALTY. -

'. “<GYCLONE IN DAKOTA.
" Yupson, Dakota, August 29—Noou.—A

* CAMDEN, August 29.—The crime for:

Hlaffa, who was in the house, was instant-
ly killed by the fluid. ;

A STEAMBOAT, CAPSIZED BY A ILURRICANE,
EVANSVILLE,: Indiana, August 29.—The
transfer steamer Belmont was capsized by
the hurricane this forenoon at Stanley’s
landing, three. miles above Henderson,
and from 10 to 15 persons were drowned.
The vessel was turned completely over.
She was going to Henderson with a barge,
on which was a train containing. pas-
sengers’ of --the Louisville and Nash-
ville Railroad. ‘The boat separated froin
the barge. All on the latter were saved,
and all on. the boat, except fouror five,
were lost. Among the lost are Capt. John
Smith, E.C. Roach and son, prominent
merchants. of- Evansville, Miss Laura
Lyon and sister, Sallie Bryant, a teacher
here, and her mother, Mrs. Bryant, Mrs.
Woodtree of Henderson, and a lady and
babe. The. bodies of the last three have
been recovered.. The unknown. woman
had a satchel, in which was a card with
‘*Miss Hattie Murray, Brookfield,’’ in-
scribed on it. The boat is a total loss.
There is $15,000 marine insurance. Tele-
graph and telephone wires to the aca
son are broken.

POLITICAL.

- A NOMINEE RETIRED,
GREENSBORO, N.C., August 29,—Ata
meeting between Senator Plumb, repre-
senting the National Republican Executive
Committee, and the State Executive’ Re-
publican and Liberal Committees, it was
decided that Dr. Weeser should retire as
Congressional nominee inthe Fifth Dis-
trict, and that'Col. J.C. Edwards be sub-
stituted: in! his place, No’reason for the
committes* action -has been made public.

BUTLER’S CANVASS.

PHILADELPHIA, August 29.—At a con-
ference of the National Greenback-Labor
leaders with General Butler,. at: Williams’
Grove to-day,.an aggressive campaign was
decided on. General Butler will make
four more speeches in the State, one at
Philadelphia, one at Pittsburg and two at
points in the interior yet to be determined.,
From. now. until the State Convention
meets, September 18, at Bellefonte,. will
be devoted to perfecting organization and
filling up local tickcts. At that time the
speaking canvass will begin. A ‘red. rose
on @ green leaf was decided on as.the But-
ler badge. State Chairman T. P. Rynder
and Thos. A. Armstrong will officially rep-
resent the party at the meeting in New
York to-morrow (Saturday) evening.
Butler spoke at a Grangers’ mecting to-
day to several thousand persons.

CONGRESSIONAL,

LEAVENWORTH, Kansas, August 29.—
The Democrats of the First District nomi-
nated Thos. P. Fenton for Congress yes-
terday. ~

ALEXANDRIA, August 29.—Duff Green,
of Fredericksburg, was to-day nominated
by the Republican-Convention ofthe Lighth
Congressional District for Congress.

Monmouti, Ills., August 29,.— The
Prohibitionists of she Eleventh District
have nominated D.H. Broaddus for Con-
gress.

Tennonn ,: Va., August 29.—R. A.
Hubbard, of Buckington county, was to-
day nominated for Congress by the Repub-
licans of this, the Third District.

PrerErspura, Va., August 29 —As was
anticipated, two Republican Congressional
Conventions are being held here to-day to
nominate acandidate for Congress from
the Fourth District. The Convention was
called to be held at the court-
house at noon, but shortly before that
hour the anti-Brady faction bolted and
retired to the Academy of Music. Both
conventions have effected temporary or-
ganization. Two separate Congressional
nominations will be made. ° The anti-Brady
convention was addressed by Hon. Edgar
Allen. Governor Cameron and Senator
Mahone are here.

Staunton, Va., August 29.—The Re-
publican Congressional Convention met
to-day and nominated J. Yost, editor of
the Valley Virginian, for Congress from
the Tenth District.

ABINGDON, Va., August 29.—The Re-

FOREIGN AFFAIRS.

LATEST FROM THE SEAT OF
WAR IN CHINA.

The Works at Kinpai Destroyed
—European Residents of
Shanghai—The Soudan Expe-
dition—The Cholera. y

[BY TELEGRAPH TO THE REGISTER. >

Paris, August 29—Noon.—The officlal
reports, concerning Langson, have been
received from General Millot, comman-
der. of the French forces in Tonquin.
General Millot praises the valor of Colonel
Degene, who was in command of the de-
tachment sent to occupy Langson, but says
he acted too precipitately.

Col. Degene was under orders to. occu-
py Langson peacefully. When he found
himself ‘confronted by an opposing force of
Chinese, in regard to which he had received
no orders, Col. Degene onght to have
asked further. orders “from Gen. Millot by
means of the heliograph.

The French newspapers are exultant
over the success which has attended Ad-
miral Courbet’s efforts in destroying the
defences along the river Min between Foo
Chow and the : sea,

SmanGuar, August 29.—The European
residents of Shanghai remain unmolested.
Many of the Chinese, however, have: be-
come alarmed and are leaving the city. and
the foreign settlement. The chief. magis-
trate of the city and the Consuls have is-
sucd placards urging the natives to remain
in their homes, as the French: have no
present intention of attacking Shanghai or:
Woosung. The Chinese authorities here
have received an important telegram from
Pekin, the’ purport of which is not pre-
cisely known. There-are revised reports ,~
however, that China is desirous of coming
to an agreement with France. The Viceroy
of Canton has ordered all Frenchmen to
leave his province immediately. .

SuaANGuHAI, August 29—4 Pp.” m.—The
French flect has destroyed the remaining
works at Kinpai. Itis belived to have left’
the Min river to-day, but whatis its des-
tination remains uncertain. It seems
probable that it will come to Shanghai.

‘Lonpon, August 29.—A Foo Chow des-
patch explains that the foreigners’ quarter,
looted by the Chinese since the French
descended the river, is the one near the
arsenal,

THE CHOLERA.

Napies, August 29.—Much uunecessary:
opposition to. the transfer of cholera
patients to the hospital prevails among the
populace of this city. Forcible opposition
was .yesterday offered. As a _ person
stricken with the disease was being con-
veyed to hospital rioters wounded and
otherwise maltreated several police. At
the same time crowds of women asuiled
the infant schools, for fear that the
children, if they became unwell, would be
taken to hospital. The Syndic has asked
tbe Archbishop to help enlighten the peo-
ple.

Lonpon, August 29.—The stcamer
Espoondia from Maurseilles has arrived at
Cardiff with two cases of cholera on
board, and has been detained at quar-
antine.

RoME, August 29.—The daily bulletin
showing the ravages of cholera in Italy for
the past 24 hours is as follows: Fresh
cases—Bergamo 6, Bologna 6, Campo-
basso 15, Coni 7, Busca ll, Tarantasca 8,
Villa Folleto 2, Vattegrasco 1, Modenap
4 deaths; Naples—+ cases, Massa 18 ‘cases
and 11 deaths; Parma, 3 cases and 10
deaths; Lospezzia, 3 cases. There has
been a total of 18 deaths at Voltisnasvo «°°

MARSUILLES, August 29.—The report of
ravages of cholera in the southern pro-
vinces of France for the past 24 hours is as
follows: Herault 6 deaths, Gard 3, Aude
6, astern Pyrennes 18.

TUE SOUDAN EXPEDITION.

Lonnon, August 29.—Col, Stewart has
been ordered to proceed to Egypt to join
the Soudan expedition,

A MANCHESTER FAILURE

small eyelane passed enst of this city yes- |

publicans’ of the*’Ninth Congressional Dis-

A WOMAN Bb
TH
St. Lou:
lon, Illinoi:
afternoon, °
the smoke !
son-in-law.
blood, with
lying by he
mediately s:
and she was
ble. There
the dread
later it
consequenc:
horrible. °
able widow .
court, Was
adjoining h:
town. Her
beaten, ani,
her breast.
blood stain:
a club, bot!
used with 1
Upon eh
Crowther,
killed Mrs
little dangh
Cormac, an
her services
and still mi:
Mrs. Crow
weapons itt
death. Shi
reaction of |
her life. ‘I
dressed lett
by Mrs. Cre
of the Core:
Str. Lour
died betwe
night, after
killed Mrs
any reas:
to “be we
she entert:
Mrs. Corms
that she har
killher. S
of . Thomas
She had
husbands be
lived a very
was a wid
court; the o
Mines near |
some local
esteemed a
distance fro
that she w
was her enc

Bhi
New You
torrents to-
the races w:
First Rac:
three-qnart:
won, Mach:
Is2}.
Second |
mile. Palos
rie Stewart
’ Third Ra
one aud o
wou, Dan
time 1:584.
Fourth Re
a mile. J.
second, Ady
Fifth Rac:
of a mile.
Nellie Glem
The hurd

BI
New Yor
ures throug,
Week. num!
Canada 16,
week, & de:
entire num
Pacitic Stat+
sections of
casualties »
New You
ning, dry-:
suspended ;
tension.

Trvrprevert A ston Tg deltirpa G

Joa. A. *

SUPREME COURT [Dec. Term,

OF ALABAMA. 15
[Holley v. The State. ] )

14
“Appeat from Tuscaloosa Circuit Court.

Tried before Hon. Jonn Moore.
_ ~ °Scip Holley, the defendant in the court below, appellant
rere, was indicted for the murder of Luther Sealley, and was
a , --eonvicted of murder in the first degree, and sentenced to be

i : — M4 =

| a Dag cs ene: S il only eye-witness to the killing examined on behalf of
i Ti po “so far as disclosed by the bill of exceptions, was
| eee ee bas iaetd Gealley, the father of the deceased, whos? 4eatimiony
“was, in substance, as follows: On the 19th January, 1884,
“between eleven and twelve o’clock in the forenoon, the
deceased received a gun-shot wound, “the gun at the time it
was fired being in the hands” of the defendant, and from the
effects of this wound he shortly afterwards died. The defend-
ant had lived on the witness’ plantation, in Tuscaloosa county,
during the year 1883, from which he was preparing to move
“on the morning of the killing. George Sealley, another son
~~ of witness, had charge of this plantation, hired the hands, ete.,
‘Wnt did not live thereon; and at the time of the killing the
“defendant was indebted to the said George, who had requested
his father to collect said indebtedness from defendant. About
~ eight o’clock on the morning of the killing, witness saw defend-
‘ant, and told him that he must pay George Sealley before
moving, or leave his gun, which he then had with him, as
-eecurity, or else he could not move his things off the place.

[Holley v. The State.]

1. Indictment; signature of solicitor.—The signature of the solicitor,
with a designation of his circuit, is proper, but not essential to the
authentication or sufficiency of an indictment ; and where, in the absence
of the solicitor for the circuit, an attorney is temporarily acting in that
capacity, under the appointment of the court, his signature to an indict-
ment, with the designation of ‘‘ solicitor pro tem.,’’ is proper.

2. Murder; admissibility of evidence.—On the trial of a defendant in-
dicted for murder, the vest worn by the deceased at the time he was
killed, and perforated by the shot, may be produced and exhibited to
the jury.

3. Charge to the jury; when free from error.—Reading to the jury, as
part of the court’s general charge, extracts from reported decis-
ions of this court, accompanied with instructions adapting them to the
particular case, is free from error.

4. Murder; when charge misleading.—On the trial of a defendant in-
dicted for murder, a charge requested by him embodying the instruction
that he can not be convicted of murder in the first degree, ‘‘ unless he had
murder in his heart,’ having a tendency to confuse and mislead the jury,
is properly refused,

5. Same; self-defense—To authorize, on the trial of a defendant

indicted for murder, instructions touching the law of justifiable homi-
cide, there must be evidence tending to show that there was, in fact, or
the circumstances generated a reasonable belief of, the existence of a
present, imperious necessity, not resulting from the wrongful act of the
defendant, for him to take the life of the deceased, to avoid the loss of

Defendant replied: “I won't do it. Pll go to Squire Parks’
fa justice of the peace] and get my things,” and then left, car-
“rying his gun with him. In two or three hours defendant

went to his house on the place, the witness following him.
At the time, a wagon, loaded with defendant’s “ things,” was
standing in front of the house, and the defendant ordered the
- driver to drive off. To this witness objected, telling defendant
that he could not move his “things” until. he paid what he
owed George, or left his gun as security for it. About
“this time Luther Sealley “came up for the first time,’
-and said to the defendant, “ Scip, leave the gun, or wait until
“George comes.” When Luther commenced talking to him,
the defendant changed the position of the gun, cocked it and
“held it in front of him, with the barrels resting across his left
arm, and holding by his right hand, so that the butt of the gun
extended under his right arm. The defendant having. replied,
“I won't do it,”. walked off, carrying his gun in the same
position. After he had gone about thirty-five steps Luther
called him and told him to stop a moment. Defendant
stopped, and turned partly around towards Luther, who was
walking towards him. “Luther walked up to within about
two feet of him, remonstrating with him, and said to him,

his own life, or to avoid grievous bodily harm; and when there is no
such evidence, such instructions are abstract, and, for that reason, prop-
erly refused.

6. Same; when charge on law of self-defense properly refused.—It is
not an honest, but a reasonable belief of a necessity to take life, that
will justify a homicide; and hence, a charge requested by a defendant
on trial for murder, instructing the jury that if they believe from the
evidence, that the defendant, at the time he fired the fatal shot, hou-
estly believed that it was necessary for him to kill the deceased, ete.,
they must acquit, is properly refused.

7. Murder in first degree; meaning of malicious as used in statute.
While the term malicious, as it is used in the statute defining or
describing murder in the first degree, is construed as signifying a kill-
ing perpetrated with a fixed hate, or with wicked intentions, or motives,
not the result of sudden passion, this fixed hate or wicked intentions or
motive may be instantaneous, and of it there need have been no pre-
vious manifestation.

8. Failure to write ‘given’? on charge given at defendant’s request;
can not be taken advantage of on motion in arrest of judginent.—The omis-
sion of the presiding judge to write ‘‘given’’ upon instructions requested
by the defendant in a criminal case, and given to the jury, as required
by the statute, is not anerror of which advantage can be taken ona
motion in arrest of judgment. :

VoL. LXXV.

*Nggl ‘62 *2nVv uo ‘eweqetTy SesooTeosny ye pesuey ‘yoeTq ‘dzos ‘AETIOH

¥igts

Ses ket gb eat oe et i AO gt oh 38 yh

Pa whee Sty Sete

Ss
ste:

Say

(Ala.

1d the court-
of Shad Wil-
ith the mur-
shértly after
ud the others
r, the feeling
parties was

r of the Goy-
‘ties so charg-
murder were
on the night
sbam, to pre
em, and were
; until Decem-
iigned on said
vurder of Mr.
sentment and
nteamong the
the hearing of
of which were
t, the state of-
it of nine men
bh set out that
were acquaint-
if Hale county,
. fair trial, that
‘anger of mob
cen “no change
fendant” since

eor erruled
di cepted.
ste... amined
il, E. BE. Gewin,

‘mma Williams,
my of none of
ley Taylor, Em-
', tended to im-
Taylor swore
lliams, Joe Me-
ed and accom-
jrake. The wo-
fe of one of the
ostified that she
n Charley Tay-
illiams, and ap-
« Monday night
|, in which con-
k?ll Mr. Drake.
{ified that she
in the path that
couse, and while
conversation be-
i*Williams, and
‘reed to kill Mr.
was a few days
d. She further
days before Mr.
ley Taylor, Shad
ind appellant at
hat as she walk-
ag. The defend-
‘ked the witness

‘stion: ‘Haven't
yw ‘e being
\USE had re-

’ @luytuiug about
eted to this ques-
-e Objection, and

Ala.) HOWARD
the defendant excepted. Defendant stated
to the court that he expected to prove that
the witness had heard that a woman had
been stripped and whipped because she had
r2fused to testify that she knew anything
about the killing of Mr. Drake (see page 75
of record). This was all of the testimony
introduced by the state. The defendant in-
troduced a number of witnesses, the testi-
mouy of none of whom is material for an
adjudication of the questions involved in
this appeal.

Had all the facts stated in the motion for
a new trial been conceded or confessed, it
would, indeed, have been a strong showing
for a change of venue, but all the facts
necessary to entitle the appellant to a change
were not confessed, but were denied, and
affidavits were introduced on the hearing of
the motion denying the existence of the
facts material to entitle the defendant to a
change of venue. There was no proof ofter-
ed in support of the motion, other than the
affidavit of the defendant. It was shown
that he had been in jail nearly all the while
since the commission of the offense, and
hence had had very little opportunity to
know the condition of public sentiment for
or against him. It is natural that public
indignation should be aroused by the com-
mission of such a crime as is conceded to
have been perpetrated in this instance; but
it is not shown that it was s0 aroused
against this defendant individually, or so
aroused, or SO prejudiced, as to prevent a
fair trial. While it is conceded that public
indignation was aroused, and that there
were rumors of mob violence, the very evi-
dence introduced by the defendant disproves
the rumor of a mob and of all violence. The
clipping from the county paper, introduced
by the defendant in support of his motion,
is headed, “Rumor of a Mob—False Alarm,”
while the body of the notice shows that the
rumor was false, that there was in fact no
such danger, and no such public excitement,
indignation, or anger as to justify any ap-
prehension of violence; that the defendants
were to be returned to the eounty, and that
no attempt had been made to do or offer
them any violence, but that everything was
orderly. The affidavits of the nine citizens,
offered by the state, did contain statements
of facts, and that the afliants knew the facts
to be as stated; and if these facts were true
the defendant was not entitled to a change
of venue. Surely these facts as testified to
by nine disinterested witnesses were enti-
tled to as much weight as that of the de-
fendant alone, who was vitally interested,
and who could not know some of the neces-
sary facts stated in his motion. We there-
fore conclude that there was no error in de-
nying the change of venue.

The question propounded to the witness
Etta Ward called for purely hearsay evi-
dence, a mere rumor, and was properly dis-
allowed.

eeePer Or OEE! sR oeyS
* . *

otis Vetpaetlanae RE ponte panty ha pene
845 ee eee peer rh) ee

AF map yet
feta top her ss Pern

v. STATE. 957

There was no error in refusing any of the
charges refused to the defendant. Charge J
was the general aflirmative charge for the
defendant, and was, of course, properly re-
fused.

Charges 2, 3, 5, and 8 predicated an ac-
quittal upon a reasonable doubt as to wheth-
er the accused and others conspired to kill
deceased on a certain night at the house of
Shad Williams. There was other evidence
than this to corroborate the evidence of the
accomplice, and hence evidence suflicient to
support a conviction; this being the only
theory on which these charges could be
correct.

Charge 6 required an acquittal if any one
juror had a reasonable doubt of guilt, and
was on this account bad.

Charge 7 required the court to charge, as
matter of law, that there was no corrobora-
tive evidence, as required by law, and was
for this reason properly refused.

Charge 8 is not a correct statement, in its
entirety, as to the necessity and sufliciency
of corroborative evidence of an accomplice
to support conviction of a felony.

Motions for new trials, or rulings thereon,
in criminal eases, cannot be reviewed by
this court on appeal.

If there had been no arraignment, and no
plea of guilty interposed by the defendant,
of course, it would be fatal on appeal. But
the record proper shows the arraignment,
shows that the defendant pleaded not guilty;
in fact, the record proper shows all that is
necessary to support the conviction. This is
matter that must be shown by the record
proper, and not by bill of exceptions; hence,
if the recitals of the record proper and those
of the bill of exceptions differ as to this mat-
ter, the recitals of the record proper must
control. If there was in fact no arraign-
ment, and no plea interposed by or for the
defendant, the recitals of the record proper
as to this effect should have been corrected
by appropriate proceedings. These neces-
sary and proper recitals in the record prop-
er cannot be disregarded on appeal by recit-
als in the bill of exceptions.

An arraignment at Inglish common law
was much more formal than with us now.
Under the former, Lord Hale says: “An
arraignment consists of three things: First,
the calling of the prisoner to the bar by his
name and commanding him to hold up his
right hand, which, though it may seem a
trifling circumstance, yet it is of importance,
for, by holding up his hand, constat de per-
sona indictati, and he owns himself to be of
that name; second, reading the indictment
distinctly to him in English, that he may
understand his charge; third, demanding of
him whether he be guilty or not guilty, and
if he pleads not guilty then the clerk joins
issue with him cul. prist, and enters the
prisoner’s plea, then demands how he wili
be tried. The common answer is ‘By God

1 canton es aman tte eth

apd the country,’ and thereupon the clerk

any * .
LS g

pabrpenei ago ees ho

ape

ei er Re al

ao Saad

ce OE OPE EOE

sits ee dnthnow Kas

a TAF 8 Wage ba am 5 hai

954

(58 Fla. 120)
THOMAS v. STATE.

(Supreme Court of Florida. Dec. 14, 1909.
Headnotes Filed Jan. 20, 1910.)
CrimInaL Law (§ 970*) — ARREST OF JUDG-
MENT—SHOOTING INTO RAILROAD Car—IN-

FORMATION—SUFFICIENCY.

Where the statute makes it an offense to
shoot at or into any railroad car “which is being
used or occupied by any person or persons,”
judgment will be arrested when the information
fails to allege that the car was being used or
occupied by any person or persons.

[Id. Note.—For other cases, see Criminal Law,
Cent. Dig. §§ 2445-2462; Dec. Dig. § 970.*]

(Syllabus by the Court.)

In Bane. Error to Criminal Court, Walton
County; D. S. Gillis, Judge.

Henry Thomas, alias Kid Henry, was con-
victed of shooting into a railroad car, and
brings error. Reversed.

Ww. T. Bludworth, for plaintiff in error.
Park Trammell, Atty. Gen., for the State.

PARKHILL, J. In the criminal court of
record for Walton county the plaintiff in er-
ror was informed against for a violation of
section 3628 of the General Statutes of 1906
by wantonly and maliciously shooting into a
certain railroad car.

The defendant was tried and convicted,
and then moved in arrest of judgment upon
the ground that the information does not al-
lege that the railroad car was being used or
occupied by any person or persons. This
motion was denied, and upon writ of error it
is urged that the court erred therein.

This question has been disposed of in the
case of Hamilton v. State, 30 Fla. 229, 11
South. 523. As there pointed out, it is a
well-recognized rule in criminal pleading that,
where a statute creates an offense and de-
scribes its ingredients, not only is it suffi-
cient to charge the offense in the language of
the statute, or in language equivalent there-
to, but it is necessary that it be so charged.

“very fact,” as Mr. Bishop says, in 1 Cr.
Proc. par. 519, “which is an element in a
prima facie case of guilt must be stated;
otherwise there will be at least one thing
which the accused is entitled to know, where-
of he is not informed. And that he may be
certain what each thing is, each must be
charged expressly, and. nothing left to intend-
ment. All that is to be proved must be al-
leged.”

The statute makes it an offense to wanton-
ly and maliciously shoot at or into any rail-
road ear “which is being used or occupied by
any person or persons.” The information
fails to allege that the car was “being used
or occupied by any person or persons.” In
Hamilton v. State, supra, the information
failed to do this, and the court said that the
motion in arrest of judgment should have
been sustained. As_ there indicated, the

50 SOUTHERN REPORTER.

(Ala.

shooting must be such as to endanger the
lives or safety of those who may be in or
using the car.

The information is fatally defective ana
the judgment will be reversed. All concur,
except HOCKER, J., absent.

=o
(165 Ala. 18)
HOWARD v. STATE.

(Supreme Court of Alabama. June 30, 1909.
Response to Application for Rehearing
Dec. 16, 1909.)

1. CRIMINAL Law (§ 184*)—CUANGE OF VEN-
UE — HosTILE PuBLIC SENTIMENT — EivI-
DENCE.

; Evidence on a motion to change the venue

ina murder case held not to show such a state of

public sentiment as required the granting of
the motion.

[Ed. Note.—For other cases, see Criminal
Law, Cent. Dig. §§ 248, 251, 252; Dee. Dig. §
134.*]

2. CRIMINAL LAW (§§ 419, 420*)—QUESTION

GALLING FoR HEARSAY—MeERE Rumor.

A question to a witness for the state as to
whether she had heard of somebody being strip-
ped and whipped because she had refused to say
that she knew anything about the murder in
question called for purely hearsay evidence, a
mere rumor, and was properly disallowed.

[Icd. Note——For other cases, see Criminal
Law. Cent. Dig. §§ 973-983; Dec. Dig. §§ 419,
420.*]

3. CRIMINAL LAW (§ 815*)—TRIAL—CHARGES
PREDICATING ACQUITTAL. ON REASONABLE
Doubt.

In a prosecution for murder, in which the
state relied on the corroborated testimony of an
accomplice, there was no error in refusing
charges predicating an acquittal on a reasonable
doubt as to whether accused and others con-
spired to kill deceased on a certain night at the
house of one of the conspirators, as there was
other corroborative evidence, and hence evi-
dence sufficient to support a conviction ; this be-
ing the only theory on which the charges could
be correct.

[Ed. Note—For other cases,
Law, Cent. Dig. §§ 1922, 1986;
815.*]

4. CRIMINAL LAW (§ 798*)—TRIAL—INSTRUC-
TIONS—ACQUITTAL—REASONABLE DoupBt.

A charge requiring an acquittal if any one
juror had a reasonable doubt of guilt was on
this account bad.

[Ed. Note—IFor other cases, see Criminal
Law, Cent. Dig. § 1940; Dec. Dig. § 798.*]
5. CRIMINAL Law (§§ 763, 764*) — TRIAL —

INSTRUCTIONS—CORROBORATIVE F\VIDENCE,

A requested charge, which required the
court to charge, as matter of law, that there
was no corroborative evidence as to an accom-
plice’s testimony, as required by law, was prop-
erly refused.

[Ed. Note—For other cases, see Crimina!
Law, Cent. Dig. §§ 1768, 1770; Dee. Dig. §§
768, 764.*]

6. CrimiInaL Law (§ 830*)—INSTRUCTIONS—
REQUESTS—PARTLY ERRONEOUS — CoRROBO-
RATIVE EVIDENCE OF ACCOMPLICE,

In a prosecution for murder, defendant re-
quested a charge that the law would not per-
mit conviction of a defendant charged with a
felony on the uncorroborated evidence of an
accomplice; that corroborated evidence is such
as tends to connect defendant with the com-

see Criminal
Dec. Dig. §

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

ay ye

956

killed. His adjacent store was burglarized,
and the store and residence set on fire; the
fire being extinguished before gaining much
headway. On the next day one Charley
Taylor, suspected of the crime, was appre-
hended, and confessed his guilt, implicat-
ing Ed Howard and Shad Williams as his
accomplices in the crime. <A day or two later
he implicated Joe McDaniels as one of the
accomplices. All four of the parties were ne-
groes, and the deceased, R. W. Drake, was
a white man, formerly sheriff of Hale coun-
ty. Shad Williams, Ed Howard, Joe Mece-
Daniels, and Charley Taylor were thereupon
arrested and confined in the Hale county
jail.

On the 30th day of November, the judge
of the Fourth circuit, Hon. B. M. Miller,
made an order for a special term of the
court, to be begun on the said SOth day of
November (see pages 1-3 of the record), and
on that day proceeded to draw a grand jury,
and drew a petit jury. On December 2d the
grand jury was duly impaneled and organiz-
ed, and on the same day said grand jury re-
turned an indictment, charging this defend-
ant, Ed Howard, with murder in the first
degree (see pages 6-13 of record). On the

same day this appellant was brought into
court, and being without counsel, and with-
out the ability to employ counsel, the court
appointed A. M. Tunstall and EF. 8. Jack

to represent him. The court thereupon set
the 5th day of December to try this appel-
lant on said indictment.

On the 5th day of December, the said case
against this appellant was called for trial,
and said appellant moved for a change of ven-
ue (see page 20 et seq. of record). In this
sworn application it is set out that Mr.
Drake, the deceased, was a white man of
much prominence and popularity in the coun-
ty; that the appellant was a negro boy; that
Charley Taylor had confessed his guilt, and
{mplicated the appellant; that articies as-
suming the guilt of this appellant and that
of the others accused by Charley Taylor, ap-
peared in the Greensboro newspapers, par-
ticularly the Watchman, a paper edited by
the chairman of the county Democratic exec-
utive committee, a man in whom the people
of Hale county had great confidence, and
whose views, as expressed in said paper, ex-
tracts from which are made a part of the
motion, assuming the guilt of this appellant,
produced a strong conviction upon the publie
mind that this appellant was in faet guilty;
that the jurors who were summoned as venire
in this case had been present in the court-
house during the trial and at the conviction
of Shad Williams and Joe McDaniels, al-
so charged with the murder of Mr. Drake;
that much feeling was manifested in said
courtroom when the jury imposed only a
life sentence on said Shad Williams, and
zhat so marked was the public disapproval
of anything less than a death verdict that
after the verdict the sheriff threw an arm-

50 SOUTHERN REPORTER.

(Ala.

ed guard around the jail and the court-
house to prevent a lynching of Shad Wil-
liams and others charged with the mur-
der of R. W. Drake; that, shortly after
the arrest of this appellant and the others
charged with the said murder, the feeling
in ITale county against said parties was
so strong that under the order of the Gov-
ernor of Alabama the said parties so charg-
ed with or suspected of said murder were
earried by a special train, on the night
of November 28th, to Birmingham, to pre
vent any attempt to lynch them, and were
kept in the jail at Birmingham until Decem-
ber 2d, the day they were arraigned on said
indictment; and that the murder of Mr.
Drake aroused the deepest resentment and
created the greatest excitement among the
people of Hale county. On the hearing of
said motion, the allegations of which were
duly verified by said appellant, the state of-
fered a joint ex parte aflidavit of nine men
(see page 37 of record), which set out that
the parties signing the same were acquaint-
ed with the public sentiment of Hale county,
that the defendant could get a fair trial, that
there had not been any danger of mob
violence, and that there had been “no change
of sentiment against this defendant” since
the Shad Williams trial. The court overruled
the motion, and the appellant duly excepted.

On the trial of the case the state examined
Turner Cash, Robert Campbell, BE. E. Gewin,
Charley Taylor, Etta Ward, Emma Williams,
and Pick Bird. The testimony of none of
these witnesses, except Charley Taylor, Em-
ma Williams, and Ktta Ward, tended to im-
plicate appellant. Charley Taylor swore
positively that he, Shad Williams, Joe Mc-
Daniels, and appellant plotted and accom-
plished the murder of Mr. Drake. The wo-
man Imma Williams, the wife of one of the
defendants, Shad Williams, testified that she
heard a conversation between Charley Tay-
lor, Joe MeDaniels, Shad Williams, and ap-
pellant, in her house, on the Monday night
before Mr. Drake was killed, in which con-
versation they all agreed to kill Mr. Drake.
The woman Iitta Ward testified that she
was walking from the field, in the path that
passed by Shad Williams’ house, and while
passing there she heard a conversation be-
tween Charley Taylor, Shad Williams, and
appellant, in which they agreed to kill Mr.
Drake. This conversation was a few days
before Mr. Drake was killed. She further
testified that she, a few days before Mr.
Drake was killed, saw Charley Taylor, Shad
Williams, Joe MecDaniels, and appellant at
the well in a conversation; that as she walk-
ed up they all stopped talking. The defend-
ant, through his counsel, asked the witness
Etta Ward the following question: ‘Haven't
you heard of somebody down there being
stripped and whipped because she had re-
fused to say that she knew anything about
the murder?” Thestate objected to this ques
tion, the court sustained the objection, and

(Ala.
ndi the
\y or

fective ana
All concur,

(165 Ala. 18)

ne 30, 1909.
itehearing

NGE OF VEN-
‘ENT — Evi-

‘ge the venue
uch a state of
' granting of

see Criminal
Dec. Dig. §

)—QUESTION
i.UMOR,

see | Criminal
. Dig. §§ 419,

\L-—CHARGES
REASONABLE

in which the
tim f an

in sing
a: able
i others con-
| night at the
as there was
| hence evi-
tion; this be-
charges could

see Criminal
Dec. Dig. §

\L-—INSTRUC-
E DouBT.
ial if any one
guilt was on

see Criminal
ig. § 798.*]
*) — TRIAL —
EVIDENCE.
required the
wi that there
fo an accom-
AW was prop-

see Criminal}
Dee. Dig. §§

STRUCTIONS—
;-— CORROBO-
1OR,
defendant re-
ould not per-
iurged with a
idence of an
ilence is such

vith the com-

epor’7- *-dexes

Ala.) HOWARD v. STATE. 955

mission of the offense, and if it merely shows
the commission of the offense or the cireum-
stances thereof, it is not sufficient; that the
only evidence introduced as corroborative evi-
dence was the evidence of the conspiracy alleg-
ed to have been formed between defendant and
others to murder deceased, and unless the jury
was satisfied from the evidence beyond a rea-
sonable doubt, independent of anything testified
to by the accomplice, that defendant, the accom-
plice, and others did form a conspiracy to mur-
der deceased, they must acquit. Held, that it
was not error to refuse the charge, as it was
not a correct statement, in its entirety, as to
necessity and sufficiency of corroborative eVvi-
dence to support a conviction of a felony.

[Ed. Note.—IFor other cases, see Criminal
Law, Cent. Dig. § 2012; Dec. Dig. § 8380.*]

7 CRIMINAL Law (§ 1134*) — APPEAL — RE-
VIEW—MOoTIONS FOR NEW TRIALS.
In criminal cases, motions for new trials, or
rulings thereon, cannot be reviewed by the Su-
preme Court on appeal. .

[Ed. Note.—For other cases, see Criminal Law.
Cent. Dig. §§ 8067-3071; Dee. Dig. § 1184.*]

8 CRIMINAL Law (§ 261*)— NECESSITY OF

ARRAIGNMENT AND PLEA.

If there has been no arraignment, and no
plea of guilty interposed by defendant, it would
be fatal to conviction on appeal.

[Ed. Note—Ior other cases, see Criminal
Law, Cent. Dig. §§ 612, 613; Dec. Dig. § 261.*]
9, CrImINnaAL Law (8§ 1088, 1111*)—APPEAL—

RECORD PROPER AND BILL oF EXCEPTIONS—
RECITALS CONTROLLING,

An arraignment and plea must be shown
by the record proper on appeal, and not by the
bill of exceptions; and hence, if recitals of the
record proper and those of a bill of exceptions
differ as to this matter, the recitals of the rec-
ord proper must control.

[Iad. Note—For other cases, see Criminal
Law, Cent. Dig. §§ 2801, 2894-2896; Dec. Dig.
§§ 1088, 1111.*]

10. CrimInaL Law (§ 264*)—“ARRAIGNMENT”’

or ACCUSED—PREVAILING PRACTICE.

According to the present prevailing prac-

tice, the “arraignment” is the mere calling of
accused to the bar of the court and reading and
explaining the indictment; its only purpose be-
ing to obtain from him his answer or plea there-
to.

[Ed. Note.—For other cases, see Criminal
Law, Cent. Dig. § 618; Dec. Dig. § 264.*

For other definitions, see Words and Phrases,
vol. 1, pp. 498, 499, vol. 8, p. 7581.]

11. CrimtmnaL Law (§ 261*)—NECESSITY OF
Two ARRAIGNMENTS.

Where the record on appeal affirmatively
shows accused was arraigned as required by
Code 1907, §§ 7566, 7840, this was all that
was necessary, and it was unnecessary to ar-
raign him again by reading the indictment to
him at the time trial was begun and having is-
sue joined on his plea.

[d. Note.—Yor other cases, see Criminal
Law, Cent. Dig. § 613; Dec. Dig. § 261.*]

Appeal from Circuit Court, Hale County;

B. M. Miller, Judge.
Ed Howard was convicted of murder and

he appeals. Affirmed.
the facts sufficiently appear in the opin:

ion of the court. The following charges
were refused to the defendant: (2) “The

the testimony of Charley Taylor is evidence
tending to show that defendant, Charley
Taylor, and Shad Williams agreed to kill R.
W. Drake at Shad Williams’ house, and if
they have a reasonable doubt as to truth or
falsity of that testimony they must acquit
the defendant.” (8) “Ihe court charges the
jury that if they have a reasonable doubt as
to the truth or falsity of the evidence of the
women, Etta Ward and mma Williams, who
testified in this case, then they must ac-
quit the defendant.” (4) General affirmative
charge. (5) “Unless the jury believe from
the evidence beyond a reasonable doubt that
before the murder of R. W. Drake the de-
fendant, Ed Howard, and Joe McDaniel and
Charley agreed in the house of Shad Wil-
liams, on Monday before the murder of R.
W. Drake, to kill R. W. Drake, then the
jury must acquit the defendant.” (6) “The
court charges the jury that, unless each of
them is satisfied of the defendant’s guilt be-
yond a reasonable doubt, they must acquit the
defendant.” (7) “The court charges the jury
that the state has failed to eorroborate
the testimony of Charley Taylor in the man-
ner required by law, and that they must
acquit the defendant.” (8) ‘he court char-
ges the jury that the law will not permit the
conviction of the defendant charged with a
felony upon the uncorroborated evidence of an
accomplice, and that corroborating evidence
is such evidence as tends to connect the de-
fendant with the commission of the offense,
and if it merely shows the commission of the
offense, or the circumstances thereof, it is
not sufficient; and the court further charges
the jury that the only evidence which has
been introduced by the state as corroborative
of the evidence of Charley Taylor, the ac-
complice, is the evidence of the conspiracy
alleged to have been formed between the
defendant, Charley Taylor, and others to
murder R. W. Drake, and unless the jury is
satisfied from the evidence beyond a reason-
able doubt, independent of anything that
has been testified to by Charley Taylor, that
the defendant, Charley Taylor, and others,
did form a conspiracy to murder R. W.
Drake, then they must acquit the defendant.”

A. M. Tunstall and E. §. Jack, for appel-
lant. Alexander M. Garber, Atty. Gen., and
Thomas W. Martin, Asst. Atty. Gen., for the

State.

MAYFIELD, J. The defendant was indict-
ed and convicted of murder in the first de-
gree, and the death sentence was imposed by
the jury. The material facts, as stated by
counsel for appellant, and necessary to an
understanding of the case and of the ques-

tions raised on appeal, are as follows:
On the night of November 24, 1908, R. W.
Drake, while asleep in his bed at his home,

court charges the jury that the only evi
dence introduced by the state to corroborate

in Laneville, Hale county, Ala., was hit on
the head with some heavy instrument and

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

TS
SEC RE RARE

ste

Vigoe tbls

Ms a
itr 2

. PET ET TT
Bisbee

HI:

2
ih:
a

SATE
wees

*
-s

Soeigbaiedsii pss Mast

are

ctr tet oe

42%
i
ee

Lawyers make last-minute bids to stop execution

THE ASSOCIATED PRESS

Attorneys for a black man sched-
uled to die in the electric chair
mounted the Capitol steps Tuesday
to:deliver a clemency petition that
Gov. Fob James already has reject-
ed.

‘Edward Horsley, 39, is scheduled
to.die at 12:01 a.m. Friday for-his
role in the 1977 death of a white 16-

year-old North Carolina girl. Nao-
mi Rolon was kidnapped and sexu-
ally assaulted during a 36-hour
drive to Alabama. She died of a
massive hatchet wound delivered
by Horsley’s fellow prison fugitive,
Brian K. Baldwin.

Horsley’s attorney, Stephen
Hawkins of Washington, D.C., said
he was shocked by word from a
James aide that the governor had

decided against Horsley before the
petition had even been delivered.

“You can’t make a mockery of
that kind of power,” Mr. Hawkins
said of the governor’s sole authori-
ty to commute a death sentence.

James spokesman Alfred Sawyer
said the governor turned aside
Horsley’s pleas because lawyers
have failed to offer anything new.

In the latest appeal — rejected

Tuesday by the Alabama Court of
Criminal Appeals — Horsley’s law-
yers maintain that prosecutors
systematically excluded blacks
from the jury that convicted him
in 1977. They cited a Monroe Coun-
ty judge’s finding that prior to
1986, race discrimination was prev-
alent in the county.

The appeals court Tuesday used
the same reasoning other courts

have used in rejecting the argu-
ment: lawyers waited too long to
mention the problem.

Most issues are barred on appeal
unless they are raised during the
trial or the first appeal. Mr. Hawk-
ins argued that Horsley’s first law-
yers were incompetent. Assistant
Attorney General Clay Crenshaw
said federal courts have found no
evidence of discrimination.

COMING THURSDAY: Isolated Gees Bend residents celebrate long-awaited arrival of ferry to cross the

SECTION

WEDNESpay

Kebruary 14, 1996

MONTGOMERY ADVERTISER

Commute Sentence

To Protect Rights

ear Gov. James:

There is a man that you
hold in your prisons, a man
who is scheduled to be executed
Friday for his role in the murder of

Naomi Rolon. His name is Edward
Horsley.

I write to you now, respectfully
urging you to commute his sen-
tence and protect his human rights
under Article 3 of the United Na-
tions Declaration of Human
Rights.

Edward Horsley was sentenced
to death by an all-white jury, al-
though he himself is a black man.
The prosecutor supposedly used
peremptory challenges to remove
all blacks from the jury.

In addition, his trialattorney ~*~
failed to present mitigating evi-
dence that Edward Horsley was
vulnerable to external domination
and took part in the crime under
the influence of his co-defendant. I
am concerned that these two cir-
cumstances allowed the decision of
the jury to be somewhat skewed.

I wish to express my deeply felt
sympathy for the victims of violent
crimes, victims like Miss Rolon, as
well as their families and friends.

However, | feel that the death
penalty is a cruel and inhuman
punishment, which no one should
be subjected to, according to Arti-
cle 5 of the Universal Declaration
of Human Rights.

Finally it violates the fundamen-
tal rights of an individual. It is for
these reasons that I ask you to
commute Edward Horsley’s sen-
tence of death.

Brunhilde Egerbacher
Austria

Aniyeetiss o>

U.S. Supreme Court rejects

» Edward V. Horsley convicted
of abduction, murder of North
Carolina girl |
By JEFF HARDY -

Washington Bureau

WASHINGTON —-The death row appeal of
a black prison escapee convicted for the 18-
year-old abduction and South Alabama mur-
der of a white gir!
denied Monday by the U.S. Supreme Court.
The justices ru i t comment jn de-
nying the appeal by Edward V. Hors ho
was-t imi_man_sentenced to deattr in
ama_after the reinstatement of capital
purfshment.
court was to notify the 11th Circuit
Court of Appeals in Washington of its ruling.
The appeals court will then remove a stay
that had been issued pending the high
court's decision. After that the state will re-

quest an execution date, sai ama depu-
ty-attorney veneral Sandra J, Stewart.

“The date_usially is set pretty quickly. It
has to be set 30 days ina e-

eiton, “stewart Said. “I don't know how the
day will play into that; but we' ng-to
move tor an execution date regaraless.””

~ MOrsiew’s 1977 trial was held in Monroe-
location of the courthouse where the

aeuy

from North Carolina was °

Gould_provide grounds fora
and closing arguments of @

_ with Brian

movie, “To Kill A Mockingbird,” was filmed.

' Based on the Pulitzer Prize-winning novel by
. Harper Lee, the movie deals with the unsuc- °

cessful Depression-era . defense by local
white lawyer Atticus Finch of a black Ala-
bama man accused of raping a white girl.

Lawyers for Horsley have maintai e
entire case against him was racial] ivat-
ed rom —the—-triatjudge" ofthe

grand jury foreman

life-witttout parole. ae .
efense_lawyer -Steven W. Hawkins says

Horsley still has at least on Ir:

ste_o w_ cache of offici ral

recordings that has never been reviewed re-

cently _was located. Once transcribed, they

50 i nds_for_additiomat—pro-

ceedings in Horsley's behalf Hawkins-sdid.
a evidence; but it j big

find and we'll be pursuing it as, far_as we

can,” he said. “We're talking abottt opening

_pretria
Ing issues and many other proceedings
thatwer ed but never transcribed.”
Horsley,
March 1977 death of Naomi Rolon, 16, along
K. Baldwin, 18, also a black man
who “had escaped from the North Carolina
Prison with Horsley, who was jailed after
confessing to a robbery.
Court documents of the Monroeville trial,

During trial, Horsley’s defense attempted
to show at the e that he’sul:
Clered_a childhood brain injury which made

then 19, was implicated in the

death row appeal

which include a confession by Horsley.-indi-
cate the two escapees kidnapped Rolon, in
Hudson, N.C., and drove her car from there
to a secluded woods in Monroe County;
where Baldwin killed her with a hatchet. ap
Officials said the girl was beaten, stabbed:
sexually abused and forced to ride in the
trunk of the car during the 40-hour win
When the two males were apprehendéd’ ir
Chambers County, in.another stolen vehicle:
police said they found the automobile tag.
‘Horsley allegedly had taken off Rolon’s Car.
before he and Baldwin left her in the woods:

him submissive to Baldwin's ' ominant
nality. ae ge oa. eae
Documents in the appeal were presented
to suggest that Mon u ircuit-tudge

Robert E. Lee Key, Jr. and Districi Auorney
Fie arson intention iscriminat:
In addition, records show that Horsley's

court-appointed Jawvyers, both local w ites,
made no objections to Pearson's-strategy of

iki andidates for the jury just.
as he had done in Baldwin's trial Hawkins
ee tam
“Both Horsiey and Baldwin are on ceain
row -at Hoiman Correctional! Facilitv in A‘.
more.

fésss-RECISTER cl he Ao /O/8 LU GF 5

261-1518

MONTGOMERY ADVERTISER ¢

UAL

vy Ch

SECTION

. SUNDAY
February 11, 1996

Officials recall trial of death row inmate

By Alvin Benn
ADVERTISER STAFF WRITER

Edward Horsley has been on Alabama’s
death row for almost 19 years — three years
longer than the: lifetime of the waitress he
and another man murdered.

.They kidnapped Naomi Rolon in North
Carolina, put her in the trunk of her moth-
er’s car and then drove south — stopping oc-
casionally to torture their terrified, nearly
naked victim.

During the 40-hour trip, during which the
16-year-old high school junior had nothing to
eat or drink, she was raped repeatedly,
stabbed, beaten and had shoelaces tightened
around her neck.

Exasperated at being unable to kill her
quickly, Horsley and his companion, Brian
Baldwin, ran over Ms. Rolon with the car
and, finally, ended her life with an ax.

The girl’s mutilated body was found in a
wooded area in the Franklin community of
Monroe County — dumped there from a ve-
hicle stolen in nearby Wilcox County by the

two work-release escapees.

“It was the most gruesome thing I’ve ever
seen,” Monroe County Coroner Farrish
Manning said last week.

Horsley, 38, is scheduled to die at 12:01
a.m. Friday for a murder that remains vivid
for the two prosecutors who convicted him
and Baldwin.

“T called them savages during the trials
because that’s what they were,” said Assist-
ant Attorney General Robert Morrow, who
was Wilcox County district attorney when
the murder occurred. “It was just unbeliev-

> —

able what they did to her.”

Ted Pearson, who was Monroe County’s
district attorney at the time of the murder,
said a few days ago that what got to him
most was the ‘“‘gruesomeness of it.”

“In the confessions (Horsley and Baldwin)
gave, they said they could hear her scratch-
ing in the trunk of the car they stole,” said
Mr.. Pearson, now an assistant state prose-
cutor in Mobile County. “She was trying to

Please turn to RECALL, 4C

53 LW 4764

The United States LAW WEEK

6-18-85

CHIEF JUSTICE BURGER, concurring in the judgment.

It seems to me that the Court evades the constitutional
issue presented, see ante, at 13, n. 8, and resolves this case
on the basis of a construction of state law (a) that is inconsist-
ent with the relevant state statute, (b) that does not appear
in the opinion of the Alabama Supreme Court in this or any
other case, and (c) that was not asserted by the State in its
arguments before this Court.

The statute at issue states:

“Notwithstanding the fixing of punishment at death
by the jury, the court, after weighing the aggravating
and mitigating circumstances, may refuse to accept the
death penalty as fixed by the jury and sentence the de-
fendant to life imprisonment without parole, which shall
be served without parole; or the court, after weighing
the aggravating and mitigating circumstances, and the
fixing of the punishment at death by the jury, may ac-
cordingly sentence the defendant to death.”

Ala. Code § 13-11-4 (1975) (emphasis added).

The statutory language, particularly the underscored por-
tions, clearly contemplates that a trial judge sentencing a
capital defendant is to consider the jury’s “fixing of the pun-
ishment at death” along with the aggravating and mitigating
circumstances. But according to the Court’s opinion, the
statute is ambiguous as to whether the judge must consider
the jury’s “sentence” in all cases or only in cases where he has
decided that the death penalty may be appropriate. See
ante, at 10-11. Even if the Court is correct on this point,
the ambiguity is irrelevant in every case, including this one,
in which the trial judge does in fact impose the death
sentence.

Given the clear import of the statutory language, it is diffi-
cult to see any reason to depart from the statute absent an
equally clear contrary statement by a state court. Through-
out its discussion of Alabama case law, however, the Court
simply draws inferences from omissions. No Alabama deci-
sion holds affirmatively that the trial judge is not to consider
the jury’s “sentence.”* The passages quoted by the Court,
see id., at 11-12, establish only that the judge, not the jury,
is the sentencing authority. This proposition is not incon-
sistent with the judge’s having to consider the jury’s “sen-
tence” in the sentencing process.

The opinion of the Alabama Supreme Court does not sup-
port the Court’s construction of Alabama law. Indeed, the
Supreme Court’s opinion quotes the statement of the Elev-
enth Circuit Court of Appeals that “‘the statute [§ 13-11-4]
requires the judge to weigh the mandatory death sentence
factor in the balance with his consideration of aggravating
and mitigating circumstances in deciding to impose the death
penalty.’” Ex parte Baldwin, 456 So. 2d 129, 188 (Ala.
1984) (quoting Ritter v. Smith, 726 F. 2d 1505, 1516 (CA11
1984)); accord id., at 141 (Jones, J., concurring in part and
dissenting in part). The Alabama court did not refute this
construction of the statute; instead, it upheld the statute on
the grounds that the jury's “sentence” was not binding on the
trial judge and that the statute required the trial judge to
consider the circumstances of the particular offense and the
character and propensities of the offender. There is no in-
consistency between this reasoning and the sentencing judge
having to consider the jury’s conclusion along with the other
relevant factors.

If state law were as clear as the Court suggests, one would
expect the State’s otherwise thorough brief to include some

*The same is true of the statements of the trial judge in this case. See
ante, at 12-13.

support for the Court’s view of Alabama law. According to
the petitioner, the “very flaw which kills the statute” is that
it requires the trial judge to consider the jury’s “sentence”
“as a factor in the sentencing process.” Brief for Petitioner
13. In the face of this contention, it seems that if “{t]he
Alabama appellate courts have interpreted the 1975 Act ex-
pressly to mean that the sentencing judge is to impose a sen-
tence without regard to the jury’s mandatory ‘sentence,’”
ante, at 11 (emphasis added), the State would have men-
tioned that fact in its arguments here. It did not.

The Court should decide whether the 1975 Alabama statute
is unconstitutional because it requires the trial judge to con-
sider the jury’s “sentence” in determining the sentence actu-
ally to be imposed. In my view the statute passes constitu-
tional muster.

The 1975 statutory scheme limits capital offenses to mur-
ders involving statutorily specified aggravating circum-
stances. Because each capital offense already includes an
aggravating circumstance in the definition of the offense, the
jury’s mandatory death “sentence” reflects the jury's deter-
mination that the State has proved the defined aggravating
circumstance beyond a reasonable doubt. Because the trial
judge must weigh that circumstance along with the other
aggravating circumstances and the mitigating circumstances,
Ex parte Kyzer, 399 So. 2d 330, 338 (Ala. 1981), it makes
complete sense for the judge to take into account the jury’s
finding on that issue. The statute requires no more in hay-
ing the trial judge take into account the jury’s “sentence”
in the process of weighing the aggravating and mitigating
circumstances.

JUSTICE BRENNAN, dissenting.

I adhere to my view that the death penalty is in all cir-
cumstances cruel and unusual punishment prohibited by the
Fighth and Fourteenth Amendments, Gregg v. Georgia, 428
U. S. 153, 227 (1976) (BRENNAN, J., dissenting), and would
therefore vacate the petitioner Brian Keith Baldwin’s death
sentence in any event. But even if I thought otherwise, I
would vacate Baldwin’s death sentence imposed pursuant to
Ala. Code §§ 13-11—2(a) and 13-11-4 (1975) for the reasons
set forth in JUSTICE STEVENS’ dissent, which I join.

JusTICE STEVENS, with whom JUSTICE BRENNAN and
JUSTICE MARSHALL join, dissenting.

Under a unique statutory provision, since repealed, the
jury that convicted Brian Keith Baldwin of aggravated mur-
der was required to “fix [his] punishment at death.” Ala.
Code §13-11-2(a) (1977). The trial judge was permitted
either to “refuse to accept” the jury’s death penalty or to sen-
tence Baldwin to death “after weighing the aggravating and
mitigating circumstances, and the fixing of the punishment at
death by the jury.” §13-11-4. In this case, the judge
decided that “the death penalty as fixed by the jury should be
and hearby is accepted.” App. 18.

In my dissenting opinion in Spaziano v. Florida, 468 U. S.
——, —— (1984), I explained at some length why the jury, as
the spokesman for the community, plays a critical role in the
process of deciding whether to impose the death penalty on a
defendant convicted of a capital offense. It is my view that

‘ “Because it is the one punishment that cannot be prescribed by a rule of
law as judges normally understand such rules, but rather is ultimately un-
derstood only as an expression of the community’s outrage—its sense that
an individual has lost his moral entitlement to live—I am convinced that
the danger of an excessive response can only be avoided if the decision to
impose the death penalty is made by a jury rather than by a single govern-

6-18-85

The United States LAW WEEK

33 LW 4765

no death sentence is constitutionally valid unless it has the
sanction of a jury. Even if I did not hold that view, how-
ever, I could not accept the Court’s conclusion that a “misde-
scribed” jury sentence of death does not infect a judge’s sub-
sequent decision to “accept” that sentence. Ante, at 16.

As the Court demonstrates, it would be patently uncon-
stitutional to uphold the death sentence in this case if the
jury’s mandatory capital verdict were dispositive. Ante, at
7-8. In my view, it is also unconstitutional to present an
elected trial judge who might otherwise regard the argu-
ments for and against a death sentence as equally balanced
with the burden of rejecting a jury verdict of this kind before
he can impose a sentence of life.

One reason that we have condemned mandatory jury death
sentences in the past is that they are unintelligible. Whena
jury that convicts a defendant of the crime charged must im-
pose a sentence of death, there is no assurance that its sen-
tence represents the jury’s belief that death is the “just and
appropriate sentence.” Woodson v. North Carolina, 428
U. S. 280, 304 (1976) (opinion of Stewart, POWELL, and STE-
VENS, JJ.). For when the jury has followed proper instruc-
tions, conviction should mean nothing more than that the
jury believed the defendant guilty beyond a reasonable
doubt; unless the jury is willing to violate a sworn oath and
nullify the evidence, the death sentence is automatic. See
Beck v. Alabama, 447 U. S. 625, 642, 644 (1980). Of course,
even though the verdict is automatic, the jury might believe
that the defendant should die.* But even if the jury did in-
tend the consequent death sentence in some sense, it did so
with “no guidance whatsoever,” id., at 640, and without the
“particularized consideration” of relevant factors that the
Constitution requires in capital cases. Woodson, supra, at
303; see Roberts v. Louisiana, 428 U. S. 325, 333-336 (1976)
(opinion of Stewart, POWELL, and STEVENS, JJ.). Thus a
mandatory jury death sentence cannot be said to represent
the sort of considered community judgment the Court has ap-
proved in the past. See Jurek v. Texas, 428 U.S. 262,
271-275 (1976) (opinion of Stewart, POWELL, and STEVENS,
JJ.); Witherspoon v. Illinois, 391 U. S. 510, 519 (1968).? In-

mental official. This conviction is consistent with the judgment of history
and the current consensus of opinion that juries are better equipped than
judges to make capital sentencing decisions. The basic explanation for
that consensus lies in the fact that the question whether a sentence of
death is excessive in the particular circumstances of any case is one that
must be answered by the decisionmaker that is best able to ‘express the

of the ity on the ultimate question of life or death.’
Witherspoon vy. Illinois, 391 U.S. 510, 519 (1968) (footnote omitted).”
Spaziano v. Florida, 468 U. S. ——, —— (1985) (STEVENS, J., dissenting)
(footnotes omitted).

?“Miost, if not all, jurors at this point in our history perhaps equally
abhor setting free a defendant where the evidence establishes his guilt of a
serious crime. We have no way of knowing... .’” Beck v. Alabama,
447 U. S., at 642, quoting Jacobs v. State, 361 So. 2d 640, 652 (Ala. 1978)
(Shores, J., dissenting), cert. denied, 439 U. S. 1122 (1979). In this case,
Baldwin’s jury was told that death was the mandatory sentence upon con-
viction. 1 Record 20 (“This is a capital crime under the law of this state
and the punishment upon conviction is death by electrocution. There are
no lesser included offenses”). The jury was not informed that the judge
could later refuse its death sentence. See 2 id., at 237-247, 298-303; Beck,
supra, at 639, n. 15. The jury’s subsequent verdict stated “We, the Jury,
find the defendant guilty as charged in the indictment, and fix his punish-
ment at death by electrocution.” App. 4. Given these facts, I cannot
agree with the Court’s view that the jury’s sentence necessarily “conveys
nothing more than the verdict of guilty.” Ante, at 16. It may or it may
not. The unavoidable uncertainty of the message is one reason such a sen-
tence creates constitutional difficulties.

* Justice Jones of the Alabama Supreme Court relied on similar reason-
ing to make a slightly different nonconstitutional point in his dissent from
affirmance of Baldwin’s death sentence: .

“In my opinion, [the Court’s result] overlooks the statutory scheme . . .
that gives the jury a vital role in the sentencing process. It may well be

stead, such a mandatory sentence is so “uncertai{n] and unre-
liabfle}” that it “cannot be tolerated in a capital case.” Beck,
supra, at 643.

The arbitrariness and uncertainty of the message conveyed
by a mandatory jury death sentence makes such a sentence a
constitutionally impermissible factor in a sentencing judge's
deliberations. Rather than representing the considered
judgment of the community based on consideration of all rele-
vant information concerning the particular offense and de-
fendant at bar, such a sentence represents at best the jury’s
unguided and arbitrary judgment regarding the proper sen-
tence, and at worst merely an unwillingness to set a violent
criminal free even though the jury would not have imposed
death had it had any discretion. Because the sentencing
judge cannot possibly know what meaning, if any, a manda-
tory jury death sentence conveys, such a sentence is “totally
irrelevant to the sentencing process.” Zant v. Stephens, 462
U. S. 862, 885 (1983). In my view, due process of law re-
quires that any death sentence based even in part on such a
factor be set aside. Ibid.

The record in this case plainly indicates that the jury's sen-
tence was, in fact, on the mind of the judge that sentenced
Baldwin in 1977.‘ When the judge scheduled Baldwin's sen-
tencing hearing, he noted that “the jury has ... set your
punishment at death by electrocution, but. . . first” he would
hold a hearing to consider “all. . . circumstances.” 2 Record
249 (emphasis added). His subsequent decision to sentence
Baldwin to death was delivered not without reference to the
jury’s sentence, but rather in terms of “accept{ing]” the
death penalty “as fixed by the jury.” App. 18. Theoretical
speculation regarding what the judge “logically” should have
concluded regarding the jury’s sentence, ante, at 13, is insuf-
ficient to overcome the obvious consideration demonstrated
by the judge’s repeated references to the jury’s sentence.
We do not know how the sentence weighed in the judge’s de-
liberations, but not even the most careful parsing of words
can support a conclusion that he did not “considefr]” it at all.

Moreover, it is unrealistic to maintain that such a sentence
from the jury does not enter the mind of the sentencing
judge. When the Court examined this same sentencing pro-
vision in 1980, seven Justices agreed that “it is manifest that
the jury’s verdict must have a tendency to motivate the judge
to impose the same sentence that the jury did.” Beck v.
Alabama, 447 U.S., at 645. Today, three Justices have
changed their view, and the Court now maintains that “{i]t
defies logic to assume that a judge will be swayed to impose
the death penalty” by a jury sentence of death that was man-
datory. Ante, at 16. I cannot so easily change my appraisal
of human nature. Judges in Alabama, as in many States, are

that, under the United States Supreme Court's guidelines for administer-
ing the death penalty, the [Alabama] statutory scheme would meet federal
constitutional muster if the jury's role in the sentencing process had been
omitted altogether (assuming, of course, that the statute prescribes an ap-
propriate bifurcated sentencing hearing before the trial judge). But it
was not omitted....

“Obviously, the legislature, in retaining the jury’s role in the two-step
sentencing process, intended for the trial judge, as the final sentencing au-
thority, to have the benefit of the community's input as expressed in the
jury's ‘recommendation’ of sentence. That legislative will—as a due proc-
ess requisite—is thwarted where the jury is legally bound to ‘recommend’
only the death penalty.” Ex Parte Baldwin, 456 So. 2d 129, 141-142 (Ala.
1984) (Jones, J., concurring in part and dissenting in part) (emphasis in
original).

“Cf. Eddings v. Oklahoma, 455 U. S. 104, 112-114 (1982) (considering
record evidence of judge’s actual application of Oklahoma capital sentenc-
ing law).

“1°? "4onroe) Monroe) 2/16

1486 45 FEDERAL REPORTER, 3d SERIES

that in Thurmond the defendant only pre-
sented evidence of disparate impact, whereas
Mr. Williams presents evidence of both dis-
proportionate impact and discriminatory. in-
tent on the part of Congress. Defendant has
failed to prove any such discriminatory in-
tent.

While one district court did find a discrimi-
natory purpose, that decision was promptly
reversed on appeal. United States v. Clary,
846 F.Supp. 768 (E.D.Mo.), rev'd, 34 F.3d 709
(8th Cir.1994). Moreover, Mr. Williams’ ar-
gument that Congress’ “failure to account for
a foreseeable disparate impact” violates the
Equal Protection Clause is without merit.
See Thurmond, 7 F.3d at 952 (“A neutral law
that disproportionately impacts a racial mi-
nority does not violate equal protection .
unless that impact can be traced to a discrim-
inatory purpose.”); Aplt. Brief at 19. Since
Mr. Williams has failed to prove either that
this legislation classifies according to race or
was prompted by a discriminatory purpose,
we review the scheme under the rational
basis standard and reject his claims. See
Angulo-Lopez, 7 F.3d at 1509.

AFFIRMED.

Ww
fe) gE KEY NUMBER SYSTEM
T

Edward HORSLEY, Petitioner-Appellant,
v.

STATE OF ALABAMA, Respondent-
Appellee.

No. 92-6813.

United States Court of Appeals,
Eleventh Circuit.

Feb. 1, 1995.

Defendant was convicted of capital mur-
der, in state court. After exhausting state
court appellate procedures, defendant
brought habeas corpus petition. The United
States District Court for the Southern Dis-
trict of Alabama, No. 89-0702-AH-C, Alex T.
Howard, Jr., J., denied writ and appeal was

taken. The Court of Apj cals, Edmondson,
Circuit Judge, held that: 1) if trial court
failed to consider nonstatul ry mitigating: cip.
cumstances, error was harmless given <j
nous nature of crime, and (2) defendant jac
failed to establish that counsel was ineffective.
in failing to provide exper! who would have
testified as to neurological offect of blow on
head incurred when the de »ndant was child.
allegedly making him extra rdinarily suscep-
tible to influence of other

Affirmed.

Hatchett, Circuit Jud: °, dissented and
filed opinion.

1. Habeas Corpus 423

State court's decision to raise and an-
swer constitutional questions sua _ sponte.
even if it does not have to, will permit subse-
quent federal habeas review. 28 U.S.C.A.
§ 2254.

2. Habeas Corpus <423

Capital murder defend» nt was not pre-
cluded from raising, by fede al habeas corpus
petition, claim that sentencing court had im-
properly failed to consider nonstatutory miti-
gating factors, even though defendant had
not raised claim in state proceeding; state
Court of Criminal Appeals had raised and
decided issue sua sponte. 28 U.S.C.A.
§ 2254; Ala.Code 1975, §§ 13-11-38, 13-114
(Repealed).

3. Habeas Corpus ¢=508

Assuming that trial court had failed to
consider mitigating circumstances, other
than those specifically provided for under
statute, trial court committe: harmless error
at worst; defendant claimed that court had
failed to consider absence of earlier criminal
activity, childhood head injury leaving defen-
dant allegedly easier to dominate, and defen-
dant’s childhood spent without father, and
these would have been insufficient to change
sentence given heinous nature of crime, in-
volving 40-hour kidnapping, attempts to
drive over victim with car, and cutting of
victim’s throat with hatchet. Ala.Code 1975.
§§ 13-11-38, 18-114 (Repealed).

4. Criminal Law ©641.13(7)
To demonstrate ineffective assistance of
counsel at sentencing, defendant must estab-

53 LW 4766

The United States LAW WEEK

6-18-85

elected. Ala. Const., Amdt. No. 328, 36.13. They are not
insulated from community pressure; indeed, responsiveness
and accountability to the community provide the justification
for an elected judiciary.’ Although a judge may understand
that a mandatory jury sentence of death is, in some sense,
meaningless (but see n. 2, supra), the community probably
does not. A jury sentence of death is likely to be reported
and understood as a real sentence of death, as it was in this
case.*

Whether it “logically” need be so or not, ante, at 13, 16, the
plain fact is that a judge who later decides to sentence to life
in such circumstances is publicly perceived to have rejected
the jury’s sentence; indeed, the terms of the statute itself em-
body that perception. The pressures on a judge that inev-
itably result should not be ignored.’ In my view, only the
Court’s distance from the realities of an elected state trial
bench ean explain its declaration that, as a matter of fact, a
jury’s mandatory sentence of death will not enter the judge’s
mind when he considers whether to “refuse” or “accept” the
jury’s sentence.

Baldwin’s argument is not that a capital sentencing judge
may never consider the views of a jury as to the appropriate
sentence. The Court has approved a capital sentencing sys-
tem in which a judge ultimately determines the appropriate
punishment after receiving an advisory sentence from a fully
informed and properly instructed jury. Proffitt v. Florida,
428 U. S. 242 (1976). But when the jury’s sentence is man-
datory—as it is here—it does not represent the jury’s view of
an “appropriate” sentence based on full information and the
exercise of guided discretion. Rather than providing a sen-
tencing judge with some arguably helpful information about
the community’s view, such a sentence is either misleading
or, at best, irrelevant to the capital sentencing decision.’

See, e. g., P. Dubois, From Ballot to Bench: Judicial Elections and the
Quest for Accountability 3, 29, 145 (1980); Sheldon & Lovrich, Judicial
Accountability vs. Responsibility: Balancing the Views of Voters and
Judges, 65 Judicature 470, 471 (1982).

*The day after the jury rendered its verdict, the two major newspapers
in Alabama reported the result as “{Baldwin] gets death,” The Birmingham
News, Aug. 10, 1977, p. 2 and “[Baldwin] Gets Death Penalty,” The Mont-
gomery Advertiser, Aug. 10, 1977, p. 15.

"We approvingly quoted Justice Jones of the Supreme Court of Alabama
to this effect in Beck, 447 U. S., at 645, n. 22, after noting that “it is fair to
infer that the jury verdict will ordinarily be followed by the judge,” id.,
at 645.

“{T]o leave sentence reduction in the prerogative of the trial court is to
place undue pressures upon this office. Again, admittedly, a trial judge
must often be the bulwark of the legal system when presented with unpop-
ular causes and adverse public opinion. This State’s recent history, how-
ever, reflects the outcry of unjustified criticism attendant with a trial
judge’s reduction of a sentence to life imprisonment without possibility of
parole, after a jury has returned a sentence of death. Clearly, this pres-
gure constitutes an undue compulsion on the trial judge to conform the sen-
tence which he imposes with that previously returned by the jury.”
Jacobs v. State, 361 So. 2d, at 650-651.

See also Spaziano v. Florida, 468 U. S., at ——, n. 14 (STEVENS, J.,
dissenting) (“if the jury recommends death, an elected Florida judge sensi-
tive to community sentiment would have an additional reason to follow that
recommendation”); Ritter v. Smith, 568 F. Supp. 1499, 1521 (SD Ala. 1983)
(the identical claim to Baldwin’s “appears to be substantial. The auto-
matic death penalty, combined with the inclusion of that penalty in the ac-
tual sentencing fermula and the sentencing judge’s position with respect to
the public, might in some circumstances prejudice a defendant where the
sentencing decision presented a close case”).

‘ Alabama argues that the mandatory jury verdict is really only a proce-
dural mechanism by which the legislature conveys to the sentencing judge
its legislative judgment that death presumptively should be the punish-
ment when the definitional facts of capital murder are proven. Aside from
the fact that there is no evidence that the legislature actually so intended
the mandatory verdict, the implausibility of the legislature choosing such a
clumsy means to achieve the suggested end argues against this pendite lite
interpretation. The Alabama Supreme Court has suggested instead that

The statutory provision at issue has been repealed and is
unlikely ever to be replicated. Nevertheless, 10 persons re-
main to be executed under its command. Because capital
punishment is the most extreme and uniquely irreversible ex-
pression of societal condemnation, I continue to believe that
“{iJt is of vital importance to the defendant and to the commu-
nity that any decision to impose the death sentence be, and
appear to be, based on reason rather than caprice or emo-
tion.” Gardner v. Florida, 430 U. 8. 349, 358 (1977) (opin-
ion of STEVENS, J.) (emphasis added); accord, Barefoot v. E's-
telle, 463 U. S. 880, 938 (1988) (BLACKMUN, J., dissenting).
A mandatory jury death sentence serves only to mislead the
public and to complicate the task of the sentencing judge with
confusing signals and irrelevant pressures. Because I be-
lieve the Constitution prohibits such influences in capital
cases, I respectfully dissent.

JOHN L. CARROLL, Montgomery, Ala. (ROGER APPELL, with him on
the brief) for petitioner; EDWARD E. CARNES, Alabama Assistant Attor-
ney General (CHARLES A. GRADDICK, Atty. Gen., with him on the brief)
for respondent.

No. 83-1545

WESTERN AIR LINES, INC., PETITIONER ».
CHARLES G. CRISWELL ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT

Syllabus
No. 83-1545. Argued January 14, 1985—Decided June 17, 1985

The Age Discrimination in Employment Act of 1967 (ADEA) generally
prohibits mandatory retirement before age 70, but §4(f)(1) of the Act
provides an exception “where age is a bona fide occupational qualification
(BFOQ] reasonably necessary to the normal operation of the particular
business.” Petitioner airline company requires that its flight engineers,
who are members of the cockpit crews of petitioners’ aircraft but do not
operate flight controls unless both the pilot and the copilot become in-
capacitated, retire at age 60. A Federal Aviation Administration regu-
lation prohibits any person from serving as a pilot or copilot after reach-
ing his 60th birthday. Certain of the respondents, who include flight
engineers forced to retire at age 60 and pilots who, upon reaching 60,
were denied reassignment as flight engineers, brought suit in Federal
District Court against petitioner, contending that the age-60 retirement
requirement for flight engineers violated the ADEA. Petitioner de-
fended, in part, on the theory that the requirement is a BFOQ “reason-
ably necessary” to the safe operation of the airline. The physiological
and psychological capabilities of persons over age 60, and the ability to
detect disease or a precipitous decline in such capabilities on the basis of
individual medical examinations, were the subject of conflicting expert
testimony presented by the parties. The jury instructions included
statements that the “BFOQ defense is available only if it is reasonably
necessary to the normal operation or essence of (petitioner’s] business”;
“the essence of [petitioner’s] business is the safe transportation of [its]
passengers”; and petitioner could establish a BFOQ by proving both that
“it was highly impractical for [petitioner] to deal with each [flight engi-
neer] over age 60 on an individualized basis to determine his particular
ability to perform his job safely” and that some flight engineers “over
age 60 possess traits of a physiological, psychological or other nature

this mandatory scheme was merely the legislature's response to this
Court’s somewhat confusing signals in Furman v. Georgia, 408 U. S. 238
(1972). See Ritter v. State, 429 So. 2d 928, 934 (Ala. 1983).

In any case, such a purpose would not save this scheme from invalida-
tion, given the arbitrariness inherent in the means. Because every jury in
this situation knows that death is the mandatory sentence and has the op-
tion of acquittal, the legislature’s message will be conveyed only at the
whim of any particular jury. Thus, whether or not such a legislative mes-
sage would be constitutional standing alone, the constitutional procedural
flaw of “unguided and unchecked jury discretion” condemned in Woodson
v. North Carolina, 428 U. S. 280, 302 (1976) (opinion of Stewart, POWELL,
and STEVENS, JJ.), is not removed by the State’s theory.

6-18-85

The United States LAW WEEK

53 LW 4767

which preclude safe and efficient job performance that cannot be ascer-
tained by means other than knowing their age.” The District Court en-
tered judgment based on the jury’s verdict for the plaintiffs, and the
Court of Appeals affirmed, rejecting petitioner’s contention that the
BFOQ instruction was insufficiently deferential to petitioner’s legitimate
concern for the safety of its passengers.

Held: :

1. ADEA’s restrictive language, its legislative history, and the con-
sistent interpretation of the administrative agencies charged with en-
forcing the statute establish that the BFOQ exception was meant to be
an extremely narrow exception to the general prohibition of age dis-
crimination contained in the ADEA.

2. The relevant considerations for resolving a BFOQ defense to an
age-based qualification purportedly justified by safety interests are
whether the job qualification is “reasonably necessary” to the overriding
interest in public safety, and whether the employer is compelled to rely
on age as a proxy for the safety-related job qualification validated in the
first inquiry. The latter showing may be made by the employer’s estab-
lishing either (a) that it had reasonable cause to believe that all or
substantially all persons over the age qualification would be unable to
perform safely the duties of the job, or (b) that it is highly impractical to
deal with the older employees on an individualized basis.

3. The jury here was properly instructed on the elements of the
BFOQ defense under the above standard, and the instructions were
sufficiently protective of public safety.

(a) Petitioner’s contention that the jury should have been instructed
to defer to petitioner’s selection of job qualifications for flight engineers
“that are reasonable in light of the safety risks” is at odds with Congress’
decision, in adopting the ADEA, to subject such decisions to a test of
objective justification in a court of law. The BFOQ standard adopted in
the statute is one of “reasonable ity,” not r bleness. The
public interest in safety is adequately reflected in instructions that track
the statute’s language.

(b) The instructions were not defective for failing to inform the jury
that an airline must conduct its operations “with the highest possible
degree of safety.” Viewing the record as a whole, the jury's attention
was adequately focused on the importance of safety to the operation of
petitioner’s business.

(c) There is no merit to petitioner’s contention that the jury should
have been instructed under the standard that the ADEA only requires
that the employer establish “a rational basis in fact” for believing that
identification of those persons lacking suitable qualifications cannot be
made on an individualized basis. Such standard conveys a meaning that
is significantly different from that conveyed by the statutory phrase
“reasonably necessary,” and is inconsistent with the preference for indi-
vidual evaluation expressed in the language and legislative history of the
ADEA. Nor can such standard be justified on the ground that an em-
ployer must be allowed to resolve the controversy in a conservative man-
ner when qualified experts disagree as to whether persons over a certain
age can be dealt with on an individual basis. Such argument incorrectly
assumes that all expert opinion is entitled to equal weight, and virtually
ignores the function of the trier of fact in evaluating conflicting testi-
mony. :

709 F. 2d 544, affirmed.

STEVENS, J., delivered the opinion of the Court, in which all other Mem-
bers joined, except POWELL, J., who took no part in the decision of the
case.

JUSTICE STEVENS delivered the opinion of the Court.

The petitioner, Western Air Lines, Inc., requires that its
flight engineers retire at age 60. Although the Age Dis-
crimination in Employment Act of 1967 (ADEA), 29 U. S. C.
§§ 621-634, generally prohibits mandatory retirement before
age 70, the Act provides an exception “where age is a bona
fide occupational qualification [BFOQ] reasonably necessary
to the normal operation of the particular business.”! A jury
concluded that Western’s mandatory retirement rule did not
qualify as a BFOQ even though it purportedly was adopted

‘Section 4(f)(1) of the ADEA provides:

“It shall not be unlawful for an employer... Xy

“(1) to take any action otherwise prohibited . . . where age is a bona fide
occupational qualification reasonably necessary to the normal operation of
the particular business... .” 81 Stat. 603, 29 U. S. C. §623(f)(1).

for safety reasons. The question here is whether the jury

was properly instructed: on the elements of the BFOQ
defense.*

In its commercial airline operations, Western operates a
variety of aircraft, including the Boeing 797 and the McDon-
nell-Douglas DC-10. These aircraft require three crew
members in the cockpit: a captain, a first officer, and a flight
engineer. “The ‘captain’ is the pilot and controls the air-
craft. He is responsible for all phases of its operation. The
‘first officer’ is the copilot and assists the captain. The ‘flight
engineer’ usually monitors a side-facing instrument panel.
He does not operate the flight controls unless the captain and
the first officer become incapacitated.” Trans World Air-
lines, Inc. v. Thurston, —— U. S. ——, —— (1985).

A regulation of the Federal Aviation Administration pro-
hibits any person from serving as a pilot or first officer on a
commercial flight “if that person has reached his 60th birth-
day.” 14 CFR $121.383(c) (1985). The FAA has justified
the retention of mandatory retirement for pilots on the the-
ory that “incapacitating medical events” and “adverse psy-
chological, emotional, and physicial changes” occur as a con-
sequence of aging. “The inability to detect or predict with
precision an individual’s risk of sudden or subtle incapacita-
tion, in the face of known age-related risks, counsels against
relaxation of the rule.” 49 Fed. Reg. 14695 (1984). See also
24 Fed. Reg. 9776 (1959).

At the same time, the FAA has refused to establish a man-
datory retirement age for flight engineers. “While a flight
engineer has important duties which contribute to the safe
operation of the airplane, he or she may not assume the
responsibilities of the pilot in command.” 49 Fed. Reg., at
14694. Moreover, available statistics establish that flight
engineers have rarely been a contributing cause or factor in
commercial aircraft “accidents” or “incidents.” Ibid.

In 1978, respondents Criswell and Starley were Captains
operating DC-10s for Western. Both men celebrated their
60th birthdays in July 1978. Under the collective-bargaining
agreement in effect between Western and the union, cockpit
crew members could obtain open positions by bidding in
order of seniority.* In order to avoid mandatory retirement
under the FAA’s under-age-60 rule for pilots, Criswell and
Starley applied for reassignment as flight engineers. West-

?In Trans World Airlines, Inc. v. Thurston, —— U. S. —— (1985), de-
cided earlier this Term. TWA allowed flight engineers to continue working
past age 60, and allowed pilots to downbid to flight engineer positions pro-
vided that they were able to find an open position prior to their 60th birth-
days. See id., at ——. Pilots who were displaced for any reason besides
the FAA's age-60 rule, however, were permitted to “bump” less senior
persons occupying flight engineer positions without waiting for vacancies
to occur. We held that this transfer policy discriminated among pilots on
the basis of age, and violated the ADEA. Since TWA did not impose an
under-age-60 qualification for flight engineers, however, it had no occasion
to rely on the same BFOQ theory presented here by Western.

‘While this lawsuit was proceeding to trial, Criswell and Starley also
pursued their remedies under the collective bargaining agreement. The
System Wide Board of Adjustment, over a dissent, ultimately ruled that
the contract provision that appeared to authorize the pilots’ downbidding
was only intended to allow senior pilots operating narrow-body equipment
to bid for first officer or flight engineer positions on wide-body aircraft.
App. to Pet. for Cert. A84-A90. Since Criswell and Starley were already
serving on wide-body aircraft, the provision did not apply to them. The
Board also concluded that the provision would not support a transfer “for
the obvious purpose of evading the application of [the] agreed retirement
plan.” /d., at A89. Western relied on this ground in its motion for sum-
mary judgment, but the District Court concluded that material questions
of fact remained on the question of whether age was a substantial and de-
terminative factor in the denial of the downbids. /d., at A&l.

BF lish both (1) identified acts or omissions of

F counsel which were deficient, and (2) that
F deficient performance prejudiced defense

- such that, without errors, there was reason-
E able probability that balance of aggravating
f and mitigating circumstances would have
i been different.

; 5. Criminal Law 641.13(6)

To prove that defendant was prejudiced

by trial counsel’s failure to investigate and

' produce certain kind of expert witness, peti-

e tioner must demonstrate reasonable likeli-

hood that an ordinary competent attorney

7 conducting reasonable investigation would
* have found expert similar to one which was

aA RH EN A Ne Ma a as

30 CRU IRENE pre ee ping

F eventually produced on behalf of defendant.

6. Criminal Law ¢641.13(6)

Capital murder defendant did not re-
ceive ineffective assistance of counsel when
his attorney failed to produce expert who
would have testified to effect that blow on
head, sustained by defendant when he was
four years old, inflicted neurological damage
causing defendant to be easily influenced by
persons with whom he came in contact, so as
to support inference that defendant’s partic-
ipation in murder incident had been inspired
by domination of companion; there was no
evidence that defendant could have obtained
expert who would have so testified at time of
trial, approximately 18 years previously.

Arthur J. Madden, III, Madden & Soto,
Mobile, AL, Steven W. Hawkins, NAACP
Legal Defense and Educational Fund, Inc.,
New York City,. for appellant.

James Clayton Crenshaw, Andy S. Poole,
Asst. Attys. Gen., Montgomery, AL, for ap-
pellee.

Appeal from the United States District
Court for the Southern District of Alabama.

1. Under Alabama’s 1975 Death Penalty Act, once
a defendant was convicted of any of the specified
offenses, see Ala.Code § 13-11-2(a) (1975), and
the jury returned the mandatory. death sentence,
the trial court was required to hold a sentencing
hearing, § 13-11-3. Thus, the jury’s sentence
was not dispositive. Baldwin v. Alabama, 472
U.S. 372, 373-75, 105 S.Ct. 2727, 2729, 86
L.Ed.2d 300 (1985).

HORSLEY v. STATE OF ALA.
Cite as 48 F.3d 1486 (11th Cir. 1995)

1487

Before HATCHETT, EDMONDSON and
BLACK, Circuit Judges.

EDMONDSON, Circuit Judge:

Edward Horsley, a prisoner of the state of
Alabama, appeals the district court’s denial
of his petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. We affirm the
judgment.

BACKGROUND

In 1977, Horsley was convicted and sen-
tenced to death in Monroe County, Alabama
for the capital offense of robbery in which
the victim is intentionally killed, Ala.Code
§ 138-11-2(a)(2) (1975).

Horsley’s guilt is not disputed. Both
Horsley, and his co-defendant Brian Baldwin
confessed. We briefly review the facts. On
Saturday, March 12, 1977, Horsley (then
pps years old) and his co- -defendant
(then eighteen years old) escaped from a

North’ Carolina’ prison camp. Horsley had
aah convicted of four counts of robbery
during the course of which a police officer
was shot. That evening the murder victim,
Naomi Rolon, sixteen years old, left her
home in North Carolina to visit her father
who was in the hospital. Horsley and Bald-
win forcibly seized Rolon and her car and
drove to Charlotte, N.C., despite pleas gnd
prayers from the victim. There, both men
attempted to rape her and attempted to
choke her to death. She was stripped,
stabbed with a knife in different parts of her
body, run over with the car at least once, and
locked in the trunk while they drove to Ala-
bama. On Monday afternoon, Horsley and
Baldwin stole a pickup truck and drove both
vehicles to a secluded wooded area. Baldwin
took Naomi from the trunk and told Horsley
to back over her with the car. Horsley tried
twice, but the car became stuck. Baldwin
then cut Naomi’s throat with a hatchet. She
died after this 40 hour ordeal.

Horsley was tried separately and was
found guilty as charged by a jury which fixed
his punishment at death by electrocution.!

At the sentencing hearing, evidence ‘‘may be
presented as to any matter that the court deems
relevant to sentence and shall include any mat-
ters relating to any of the aggravating or mitigat-
ing circumstances enumerated in sections 13-
11-6 and 13-11-7." § 13-11-3 (emphasis add-
ed). The court was then required to sentence the
defendant to death or to life imprisonment with-
out parole. § 13-11-4. If the court imposed a

3 es

WY
5

a”, hauged Oc havoc A]
arch hor” Fhe ;

U5 but gg

Se raaliged

Qu 6 erp L
ag hs ap aly fie if

“aH ae [422

ined for its progress as
the south.
bly the foremost south-

ublic life today, and a
ce for order and good
nator Underwood.

nt, therefore, the
: te of that city are
or the reason they

o put an end to the lo-
e.and establish an im-
of things. ~
oh Difficult
biding citizens of many
would do well (to copy
example. ‘The| lawless
and active wherever
have been multiplying
late, and it will be no
ut them down. |
cult’ as it. is, the job
rtaken. For, unless the
erced ‘and. lawbreakers
authority will be moved
ou please rule esiab-

ibn js above party, see—
“race. It goes to the
institutions. It must
d.the sooner the. bet-
~abiding citizens every-
rgely in the majority,

as to. have:

c _—

Will. Have

ymen Members|

~ Legislature,

Asaciated: Preeé
tember’ 14.—Cliftord N:
onroe, former state at-
was nominated in
democratic: primary for
t Governor Thomas W.
“a county ufit: vote off
ording-to unofficial re-
a-tonight by the At-
atlowie Ne oe

2, Bees defeated. for.
{ce by Mr. Hardwick
carried: 117% counties
wick’ the remaining 43,
383 ‘was: Walker 84,733."
tlh and. H. Bedinger
hta, who carried no
“ene democratic: con-
be held@.sa Macon Oc-

x sin congressmen: who
iba Were renominated
im eof J. W. Overstreet
“who, final ub-

neice ted, had lost to

It is they

Two Other Negroes tM}
cated in Murder to
Be Tried

| Tuskegee, September 14.—(Special.)
“After being out only a few minutes
a jury here today in the case of Ju-
lius Howard, négsro, charged with
stabbing Rev. Frank E. Bagby, Jt.
to death on August 23 returned a
verdict of murder in the first de-
gree and fixed the punishment at
death. . Jessie Isaacs and Major Stur-
‘divant, negroes, charged with com-
plicity in the: slaying, have: not. been
tried. Bagby was the son of Rev.
F. E. Bagby, pastor of the Presby-
terian church here.
. The trial of Howard: began at 10
o'clock, .today. In - Macon county
court cailed into special session. One
of the largest crowds ever assembled
in Tuskegee. gathered to ‘hear the
evidence. ~
. Testimony
of the trial indica
negro boys: were:
-tation on a corner
that as soon as Bagby Jeft the depot |
the three crossed the street and met
him: in front of the Campbell home.
Witnesses saw the three negroes
bout Bagby, having him
inst the fence and in. @
The Howard ne-

knock Bagby’s hat
then ‘follow -hi

given during the process
ted that the three
located «in consul-
of the’ street and

-gathered a
packed aga
heated argument.
‘gro was seen to
from his head and m
‘down the street about 50 yards. H

“stepped in front of Bagby. again and |
at the: same time struck him in the
throat: with his knife, according to:
witnesses, Bagby then ran the neato
across the: street and, fell in a dying
“condition on, the- opposite sidewalk. {

Howard--wag seen running at-.&
rapide. sPSeoe with a knife ~n his

ae gies

han fos ti

- /- | Cjatmea Self Detense —
- The defendant claimed he was: €0-
ing down the sidewalk in the same
direction: with Bagby, and the. first.
“he knew of anyone being. near was
when he was. rdered to: cleat™ the
‘sidewalk. “He nowledged that an
“argument f re and claimeg that
Bagby followed: him with “Unis. hand
o- at a “<slaimed to. have run 59
feet Sown the sidewalk. and Bagby:
being so. clése hes tortked and. fuced
him. : Ha testified ‘that: Bagby: took.
his hand -fram:his pocket, stru wat
him’ andi then kicked him. and.that

A: bents, who,
a wete safety returned,

w, Fitth; J: W.
7 th, and

$4, gn a8,

“

h
# - aid on it ; remem

BAY gee, as
. if oe 4G Bes he “gt z af

3
per
¥ cae PRA ag ae!

are
r

é &
3 sites te

| Labor Federation

for considerat

"a t ;
. i
‘ ‘

e then used Ris knife in detensé. |

be possible before September ee.

}

Plans to[mpeach |
~ Attorney General

a
By Ansociated
City, N.oJ. September 14.

tive council of the Amer:-
of Labor today for-
mally inaugurated plans for {m-
peachment of Attorney General

Daugherty and ‘Federal Judge Wil-
ion with. the. Cnal-

kerson in connect

cago injunction proceedings and for
bringing. “this unconstitutional! cone
duet of the Attorney General and
Jucge Wilkerson into every cone
wressional flection.”

A statement of

-Atiantic
The execu
can Federation

the council's ace
tion, dictated by Samuel Gompers,
president of the ..federation said:
“The council today opened its cam-
campaign against all who prove un-
true to the poople’s. constitutional
rights and who would use their. po-
siticns of public. trust (to promote
purposes foreign to and in conflict
with the legitimate functions dele-
gated to them in representative Ca
pacities.”

M. & 0.

SEEKS FREIGHT
"RAISE ON PIG IRON

SL Py
September 14—(Spe-

Montgomery,
clal.)—Petition for permission to its =
crease the rate on pig iron in ear

loads from 45 cents to 68 cents per
gtoss..ton when shipped from Holt,
Tyscaloosa county, to Birmingham,
was:filed with the public servie®
commission today. by the Mobile and
Ohfo railroad. The petition was set
ion October 2.

‘He Went to ity Scaffold 1 Without

went throug

‘ED HUDSON HANGED

‘LIAMS Inv MARCH.

“Any |

Signs” of ‘Nervousness and Met His ~
Bravely, the. Drop Being
Sprung at 5:04 A Me

the o death

pulled the y Gees fe htoh
At 5B: 13 me ‘clock Hudson

abu ; and anactee accommodations
were made for the newspaper men. The

opic” discussed, generally, was as to
: anner in which Hudson would. go
_ ta the gallows, and various epiniens were

: aired on this subject.

: In the death chamber, closely guarded,
- ‘Hudson was quietly sitting on a window
_ sill when visited by the reporter. When
asked as to how he felt, he replied that

- he; was, feeling all right, ‘thought | at the

ppeared slightly nervous, ‘and
ept up. to. pe aan i

i before. lying down, ‘Weill, I
guess that I'd better get a little rest.’’
He now. appeared unconcerned as to his:
surroundings, and slept until 3:30 o’clock.
He awoke and was given a bath, dressed

in new underwear, a new black sult of |

clothes, white shirt and collar. He re-
marked while putting on his clothes that
he believed the trousers were the least
bit too long. Up to this time he had not
eaten anything, as he was to take holy
communion at 4:30 o'clock.

He chatted with several friends until 4
o'clock, when two Sisters of Mercy, from
the Sacred Heart Conyent, arrived at the
jail. A small improvised altar was ar-
ranged in the death chmber, which was
decorated with flowers, and the other.
essential requirements for the ceremony
in accordance with the ritual of the Ro-
man Catholich Church, for the baptism
and last rites of the church services. He
chatted with the sisters, and also prayed
with them, avoiding any of the religious
demonstrations attributed to the negro.
Shortly afterwards Father. Gerlach. and
Father Brislan, of ‘St. Joseph’s Church,
arrived at. the jail, and Immediately vis-
ited the. death” chamber. Hudson was
then baptised ae the Catholic church,

; the. Blighieay

os : aipletey ‘at about.
4:25 o'clock Hudson asked Deputy Ca-
: zalas. for a cigarette, and also a. cup of.
coffee, appearing - fe thoroughly Felish

Se ee eee See SERS

THE OUNTY JAIL] -

Hes LSOAP| e

"FOR HH MURDER OF OLIVIA we}

| execution, who signed the certificate to

adjustable structure, which can be taken

5 chow run no risk whatever. Your druggist’s

refund the money. whenever the purchaser
‘says Mi-o-na_ Bes not done all that: is

Makes: the Baby

SWEET AS”

ROSES |

ee the e Narser or ‘Bath it is)

By Uae:
‘SOLD EVERYWHERE.

| sician at the Providence Infirmary; Drs,
Slaughter and Barnard, from the City
Hospital. The official witnesses of the

that effect, were Drs. Hirshfield, Ward,
George Acker-and Deal. Dr. _Hirshfieid,
the coroner, will render the necessary
burial certificate. The body has been
turned over to the vity sexton, and Hud-
son was buried in Potter's Field at an
‘Learly hour this morning, | '

The gallows were situated in the east
side of the jail in the court yard. They

were built of seasoned . pine, “painted: ae

dark brown ,and stood nineteen £ eet high,
with a drop of fully six feet, being an

down or put up at short notice. The
trap worked-by a lever, which released a
brake, throwing down the trap on the
scaffold. Hudson is the fourth negro ex-
ecuted on this gallows, Isaiah Davis,
Henry Gardner and Jack. Knight being
the other three. Willle Mayse was sen-
tenced AR be hanged, bt received a re-
prieve.

Sheriff Powers’ first hencine was con-
ducted in a manner prediepis to himself,
and ae department. ‘

GUARANTEE WITH EVERY Box

Leading Druggists Give Signed Bond
With Mi-o-na, Nature’s Cure for
- Dyspepsia. :

Guaranteed, :

If Mi-o-na does not cure you of dys-
pepsia and restore perfect digestion, your
money will be returned.

When you buy a box of Mi-o-na; the
marvelous remedy for dyspepsia troubles,
have your druggist sign this guarantee:

GUARANTEE BOND

“We hereby agree to refund the
money paid for Mi-o-na on return
of the empty box, if the purchaser
tells me that it has failed to cure
dyspepsia or stomach troubles. This
guarantee covers two 50c boxes, or
a month’s treatment.

(Signed) clei. eee ce

Mi-o-na. is an unusual combination. It
heals and soothes the irritated stomach
lining and cures any congestion and in-
flammation there max be. It alds diges-
tion and saves the stomach from ex-
haustive work while the cure is going on.

Remember that in purchasing Mi-o-na

guarantee. absolutely ‘protects you should
the. medicine fail to do all that you ex-
pect. - Leadir druggists stand ready to

claimed for it:

Mi nine ety Pothaaree Pan heen Sag ap

RECEIVE
" BOAR
‘ECentract! f
Alley a
the Ri

The bog

| regular se

5 o'clock,
minutes of
read and «
The folle
neer Hazle
board: —
To the Ho,
‘Works,
‘Gentleme.
the regular,

| work -perfi

nished dur'
under the s

Asphalt Pi

Georgia —
W. M. Lasil
&W. Gur’
The force
ages more
be consider
time forwa

- The sumr
tarded th

month, “par,

struction, ¥
cent. advan:
contract wa

and providec
work four :

September 2
37 per cent.
unlikely tha
pleted as co
of the city
provided by.
is as follov
reason of tt
contractor t
furnish matr
the opinion
Sary to inst
the limit of
tract, the en
ing to the cc
provide the
sure the cor
should such
the extent 1
reasonable d
ion of the es
gineer shall ;
works. of su
board of pub]
of Mobile m
using for su
and tools fov
longing to —
assess the c
the sum wh

under the co;

In accorda1
agreement y:

the contract:
‘| although at 1
work is well
paving opera,
not. likely to
terests. :

The Pericte,

of setting cur}

vores” a lew ymomens 1laLEr “Ne wasned

again for a cup of coffee and a sandwich...

He drank the coffee hurriedly, but did
not eat the sandwich. He was as cool,
calm and collected as If going to a ball,

or some entertainment, not the least bit
neryous, and appeared as if he wanted to br

get through with it all. He lit a cigar,
and was “sally smoking when Sheriff
Powers entered the death chamber.

The first gray streakes of early dawn
had scarcely appeared in the darkened sky
when Sheriff Powers entered the death
chamber, preparatory to reading the death
warrant. Hudson stood up, and glanced
indifferently at the paper. At the read-
ing of the warrant there were present the
Sisters of Mercy, Deputy Sheriff Cazalas,
and two reporters. After the reading of
the warrant ‘Hudson said he was pre-
pared to die. Before leaving the death
chamber he made the following speech:
“T want to thank the priests and sisters,

Sheriff Powers, and all the a hig for
r

their kindness to me.’
At 5 o’clock the march to ie gallows

Was begun, in the following order: Sheriff

Powers, Fathers Gerlach and Brislan, the
Sisters of Mercy, and Hudson, who walk-
ed between Deputy Cazalas and a news-
paper reporter. Hudson was smoking a
cigar, and when arriving at the door of
the jail leading into the yard he shook
hands with several friends and the depu-
ties. Hudson’s first glance at the gal-
lows was with utter indifference, and he

- ascended the steps with unconcern, puf-

fing vigorously on his cigar, which he dia
not throw away until after ascending the
platform. On the gallows were the two
priests and Deputies Cazalas, Gates and
Broadus. While the noose was being
adjusted he glanced at the knot, ana
stood firm and steady while the black
cap was being placed over his head. The
two Sisters of Mercy were’ praying at
the foot of the gallows. Everything be-
ing read, Hudson being securely tied hand
and foot, the signal was given at 5:04
o'clock, the trap was sprung, and Hud-
son hurled into eternity. From the drop

of the trap not the slightest tremor of:

the body was visible, and the body was

“absolutely void of any muscular con-

traction, except a slight twitching of the
fingers, as the heart stopped beating. For
fourteen minutes he was left suspended,
his heart keeping up considerable action
for fully fen Minutes after the drop. At
5:18 o'clock: he was pro aced dead and
cut down.

Toward morning anita a large crowd ap-
Peared at the jail gates, and just prior
to the hanging Sheriff Powers gave the
order to open the gates. Fully three hun-

“dred people witnessed the execution, and

not the slightest disorder prevailed. The
hanging was accomplished without a

hitch, and under the circumstances Sher-

iff Powers and his deputies are deserv-
ing of much praise and credit for the or-
der and system which prevailed.
Among those present were Dr. Hirsh-
field, county coroner; Dr. W. G. Ward,
county Physician; Dr. George Acker, from
Fort Gibson, Miss.; Dr. Deal, house phy-

| Van “Antwerp. & Son with- the: under-

ANE ET Me Pak Byte asin ten gerne te been Made Dip se Ne ae SP Oa SBP ante

and all stomach. troubles, is sold by G.

standing that the price will be promptly
refunded on request, ‘should it fail to
do all that is. claimed for, fon

ATLANTIC. OCEAN RATE WAR. 2
Hamburg, September 8.—The Hamburg-
American, Line says the Cunard Line has
not yet replied to’ the proposition of the
allied. companies relative . to the passen~
ger ‘business’ and, consequently, the re-
ports of a complete rupture of the peace
negotiations and of a resumption of the
rate war are incorrect. The recent con-
ference at Frankfort-on-the- -Main, it is
added, took a recess in order to permit the
Cunard peuple to think over the proposals

made for a settlement of the disputes.

“HELLO” COMPANY SELLS OUT.

Jacksonville, Florida, Telephone Com-
pany Changes Hands.
Jacksonville, Fla., September 6.—(Spe-
cial to Atlanta Constitution)—All of the
property of the Jacksonville Telephone
Company was sold yesterday, and was
bought in for the sum of $5,000 by D. T.
Gerow, who is supposed to represent the
principal creditors, he being the only bid-
der, The company was organized about
seven years ago to compete with the
Southern Bell, but has been in the hands
of a receiver for several months, and was

finally’ sold yesterday for $5,000. It.
understood that about $75,000 in all ne
been invested in the property, and they
have an exchange in operation with about
700 stations, while the Southern Bell ex-
change has nearly 1,800. The purchaser
made no statement as to whether the ex-
change would be continued.

THE McCUE MURDER. CASE.

Samuel McCue Charged With the Death
i of His Wife.

Gharlottesvilia: Va., September 8.—The
coroner’s jury which has been investi-
gating the McCue murder case, returned
this verdict this afternoon: :

“We find that Mrs. Fannie C. McCue
came to her death by a gunshet wound
in the breast, inflicted by J. Samuel
McCue, her husband.’

The accused has eniploved eminent.
counsel.

Fifteen additional guards have peer sta-
tioned at the jail in addition to the twenty
on duty last night, but no mob violence
is feared, since the arrest has been made.
OA preliminary hearing has been waived
by McCue’s counsel. The grand jury will
hear evidence on September 19.

CATTLE RESTRICTIONS "REMOVED.

Washington, September 8.—An order has
been signed at the agricultural depart-
ment removing, restrictions on shipping
cattle northward from Custer county, Ok-
lahoma, as the infection of southern fe-
ver is reported by agents of the depart-
ment to have been eradicated in that vi-
cinity. :

“liminarye wor,

as shown by
yards of bric

The contra
ing is also
setting, gra¢
preliminary +
completed tl
opposite the
Railway depc
other paving
ing, and he
operations ¢
soon as the
paving the
centre poles
tracks, etc.,
way. The cc
paving contr:
granite block
and your en;
company hay
quarrying th
commence ta
impossible f

| this work ul

relaid their
In this la
neer respect
28 last, spec
the notice ¢
of public wi
were furnis)
interested,
conferences
pondence c
place. The}
first agreed
pattern, an:
was approv
understandi
one of the
for all con:
has since b
tern selecte
sufficient qt
with Super
Louisville -
was advise
to furnish
Sylvania R
der rail, we
the most aj
of rail ever
streets. It
other lines
follow this
tiations hi
engineer h.
ters and se
railways ir
withstandir
work is H
his anticip
fore welcc
struction ©
in the prer

Since a fr
with the m
plied by 1
Creosoting
Kreodone }
and telegr
this depart
far withour
certified ch

. them being

fault; it is
matter wi!
shortly, ar
commenced

The repor
Messrs, J
son submit

‘laying of ¢
| of Royal st
Smith alley
side of St.

|} -wardly on!

ing the wi

‘Slave JACK, black, hanged at Decatur, ‘Alabama, -, 1860

MS EEO a te oT, eee
/

vrackin? the blood wl.ich led from
as committed to vuhe wil." Tass,

"2ZGN- Yo2-6 .'/ 0
On Feb, 25, 1861, Alabamapaid to David P, Lewis, agent
for Sarah Morris, $600 (‘arrant 801) $ value of slave
executed in Morgan County. STATE BRESSURY DISBURSEMENT
JOURNAL, 1857-1866, Div, of Civ. Arch., Dept, of Arch, &
Hist.

(Note Lewis wasReconstruction Governor of Alabara, )
the Decatur, ila., papers state that a lad about 16 2
years of agi, son'of Mrs, Morris, livins at Decatur, Ala. ff
“sS mrdercd by a negro servant Delonevin’ to the family.

it seems the lad gave him some orders, and the servant Ae
not abeyéne, he threatened to have hin punished, when the Kae
negro picked up a stone ar hit his youne master on the =
head, icv is supposed, killing him instanvly. After he hai

committed the deed, he took the body and thew it into an
old well nearby, The vodywas found after considerable

eas is Jesse, black, hanged Andalusia, Covington Co., April 20, 1904,
“FIRST HANGING IN FIFTY YEARS.
“The Murderer of Green Phillips is Executed.

“He makes confession of his crime, and declares himself prepared to meet his God.

“Andalusia, Ala., April 20.-A mixed crowd variously estimated at from 1,500 to 2,000
assembled here today to witness the execution of Jesse Jackson, a young negro, for the murder of
Green Phillips. The multitude began to assemble about 9 o’clock and by noon the jailo was
completely surrounded by a surging mass of humanity. The scaffold was erected close by the jail
on the east side and was walled in up as high as the trap which left the body in full view until the
' drop fell.

“The doomed man ascended the scaffold just at 1 o’clock and talked for half an hour, The
first words he said were: ‘Green Phillips is dead and I am the guilty partyI was persuaded to do it
by Jennie Phillips and Jesse Jackson. I have made my peace with God and do not dread to die.”

“The condemned man then thanked Sheriff Bradshaw for his kindness and asked all
present to give Rev. Israel Chandler, his spiritual counselor, five cents which was done by quite a
number of the congregation. The minister then gave out the hymn ‘Did Christ O’er Sinners
Weep’ and the prisoner joined in singing it, after which the minister made a short, but fervent
prayer for the wretched man. The prisoner then fell on his knees and prayed, after which he rose
and said: ‘Farewell, everybody; good bye.’

“Sheriff Bradshaw then adjusted the black cap and sprung the trigger and the body of
Jesse Jackson fell dangling in the air. The trap fell at 1:35 o-clock and the body was cut down at
2 o’clock and pronounced dead by the doctors from strangulation as the neck was not broken.
Everything passed off quietly.

“This is the first hanging this county has had in fifty years. Jackson was 4 young negro,
22 years of age, and he was hung for the murder of Green Phillips, committed last fall. He was
tried at the spring term of court held here in March. The evidence was purely circumstantial,
though very convincing. The cause of the murder was Green’s daughter, who had run away with
Jackson, which aroused Green’s anger and he threatened to have vengeance. So one night to
avoid any trouble with him, Jackson got a shotgun and secreted himself near Green’s house and
just after supper when the old man had seated seated himself on the front piazza for a quiet
smoke, filled him full of buckshot.”-Advertiser, Montgomery, AL, 4/21/1894.

house through a field toward tone woods, end on this route of escespe wes
found one footprint, @ plaster cest of which wes made by Warrant Officer
Coley. The victim was taken to [r. Chipnen in Columbus, Georgia for ~
exeminetion. She returned ebout 1:50 p.mn., and was interviewed by the
writer, The following is her oral stetement to Williams and Phillips:

“I live with my mother end father-in-law, Mr. and Mrs. C. .. Clark,
and have one son, named Levid, eged tWOe My mother and fether-in-law :
plett the house ebout 6:50 a.m. end the baby and I were in bed in the back
bed room. At about 7:30 &en. I wes ewakened by @ negro msn. then I first
ecw him he wes standing in my bed room end he told me to get up. I wes
sieaping in a short slip end penties end pose ecind a Kotex. This negeal
hed a cun in his hend. I later learned it wes my Se ips law's shot
gun. # Ze wes of mediua build, hed) Gerk complexion, hed a scar or sore on
the Pir eht eran just above his elbow. He wes veriane a yellow strew hat,
wnicn I later learned wes ny fether-1 n-lew's, He elso had on a gray polke-
dot dress and hed on a ¢e of blue jeans under the dress with the pants ”
legs rolled up. He had his shoes eff and hed a hendkerchief tied eround
his Tece, ccevering all of his fece oo. his eyes. ‘fI later learned thet
the polke- dot dress was my motner-in- Llew's dress, and that of hed been ie £
teken fron a closet in my mother-in-lew's bedroom. The first thing the ;
negro said wes "You might as well get up". I esked him whet did he want.
and he said "You know whst I went". I said "I'm just a little girl," and
he ssid “Get up and let me see". I turned the covers back and sat up on
the side of the bed for a while, then I lay back down end covered up agein.
Ye asked me wes I married, but I don't believe I answered that. He also
asked me did I have any money, and I seid "No, I'm broke". We told me to

get up, end I told him to go in the living roon and I would. Soa he went.

in the living room, end I.got up end put on a house coet, then he celled

to me one told me to come in the living room and turn, on the TV. The

beby had éwekened by this time. I went to the living room and turned

Cn tue iV set; I don't remenber whet the exect words wer ¢, but I told

hin I was sick. He said I wean't sick. So I-seld "I'l prove it to —

you if you went ine to". So, about the time I sterted to show him, I

pulled up my dress te show Pea. he grebbed me and started to Crag me

to the ted room, I bit hin, maybe on the ern, I don't lmow extctly where,

He didn't get toc rough, end then he let me go. I then walked to the

telephone end stocd by it for ewnile. He went in my bed room and sterted
peenki inge He got some money cut of my chilets piscy bank. Then he

made me leave the telephone end &0 into the front Led room. I cerried

ths ‘veby with me. Ee put the 'phone on. the floor {n the hell where he

could see it while he wes Parenting the beck bed room. I did nct ettenpt

to pun veceuse I hed the baby with me. ‘The baby began crying and I

esuxed the negro if I could £0 cook the Lseby sone breakfeet. Finelly

he let we go, end while I was Sooking an Css he wes still searching the

dravers in the bed vooa. fnd Guring this time he changed guns. He took

enother Gun cout of the house. I fed the beby his egr, end then he cane

in the kitchen ang sst down, and Seid he wes reedy to leeve efter he did Be
what he wanted to. Then he put the gun to. my beby's heed, en@ then )
pointed it at me, end said he would Kill both the beby end ayself if I
Gidntt do it, so I went ape gas bed room. I told him L.would do whet

ne wented to if he would Ge on and not bother us, end if he would put
the gun away. I started to GO out and ne sterted to get the gun apeain,
So then I decided to do whet he wented to do. I took everything off but
my house coet and slip. Ye didnitt teke off his pents, just opened then.
Serore he sterted to have intercours se with me he put a rubber on, and
just before he started to have inter course he got up and took thet eubber |

off and put another one on, then he went on and succeeded in having

f
crane through a field toward eome woods, and on this route of escepe wes
ond one footprint, a plaster cest of which wes made by Warrant Officer
Bote y. The victim was taken to [r. Chipnen in Columbus, Georgia for ~*
exeminetion., Che returned ebout 1:50 p.n., and was interviewed by the
writer. The following is her oral stetement to Willians and Phillips:

"I live with my mother end fether-in-law, Mr. and Mre. C. ., Clark,
and have one son, nemed Laevid, eged two. My mother and fother-in-law ‘
Left fhe house about: wt 30 e.m. end the baby and I were in bed in the back

bed rooa. At about 7: 30 &.m.e I wes ewakened by a negro msn. Then I first.
few him he wes standing in my bed room end he told vue to get up. I wes
Sleeping in a short slip and penties end wes weertng- a Xotex. This Bearo.
had s cun in his hend. I later Sesrned. it wes my father-in-lew's shot
gun. Se wes of mediua build, had derk tomplexion, had a scer or sore on
Pot pi cht erm just above his elbow. Re was veering a yellow strew hat,
which I later leerned was be fether-in-lew's, He elso had on a gray polke-
dot dress and hed on a pie of blue Gens under the dress with the pents
less rolled up. He had his shoes eff end fea a handkerchief tied pround
his fece, covering all of his fece stable his eyes. I later lear rned thet
| the polke- dot dress was my mother-in- law's dress, énd that it hed been
teken fron a closet in my mothe r-in- law's bedrroom. The first ehere the
negro said wss "You might ss well get up". I esked him what did he went
and he said “You know what I eent®. I said "I'm Just a little girl,” and
he said “Get up and let me see". I turned the covers beck and sat up on
the side of the bed for a while, then I ley back down &énd covered up agein.
Te asked me wes I married, but I don't believe I answered that. He also
asked me did I have any money, and I seid "No, I'm broke". We told me to

ge P, end I told him to go in the living roon and I would. So he went

in the living room, end I got up end put on a house coet, then he celled

intercourse. I was very stiff and did not move, end he told me I wesn't
Eelpide him much, end he could not get through. He stayed on me a very:
long bCiges Lofelt: iixze it naa beginning to get raw before he finished;
cowever, he wesntt so very rough with me. During the time we were heving
intercourse We eis telking to we end told me thet he wes en escepee from.
ea chein ceng and thet he cene from Sirminshen. He elso asked me whet Ae
ny nene was. During the first pert of the intercourse it hurt me quite
& bit, but leter on it didn't hurt: me so bedly. His penis wes not huge a
or extra lerce. Finally, he reeched his climax, end efter he wee through,
ne tock the: rubber off end put it In the comsoce. Leter, efter the
néetionel Guerds cene to the house, I flusred the conzode myself. After .
he bed finished he left end weat out the beck door, end I went to the

\
\

telephone end celled my eunt, “rs, Ruby Efurd, and I told ‘her I hee been

raped. Just es I hsd finished celling, the necro cene beck and picked
sone bullets up off the bed thet we hed used, then he left egein vy the
beck door, end thet's the lest I -have_seen of him. I doen't knew if I>

would reccgnize hin if I saw him egein or not. ‘He was in the house = te.

eltogether about two hours." (Rote: During the time thet the subject KEs

heaving intercourse vith the victim, she steted thet he never did teke.,

eff the dress, the het, the pants or the hkendkerchief, end she never did

see anything but his eyes.)

Jo H. Williams ©

obace e

: ou ' ida
oy isuib why
!
ba ey Ler Is Lie
appre ee
re | \

Pus! ‘
Ala, at Donte |

i Kisolyent Be
‘riciesye ane | WE shouldn't have nes.
see will suggest, ‘that some clever highy?: we? are needing.
sites ‘ is : r will be made b
fellow geb a” ‘subscription hist very, much herve, —have had | vee Winston : Suty,
mee nm udioral and inked it tO ‘the people and but* one season § since. “LT came = ere on Ap rik’ 225, 1887.,! os ies ‘No. eae, “ex!
\| to put in somen 4p : 11620, ; ae a ee including Tex! |
} me- | here. ° [his is one, of the hard AMES K. PAYNE, © ltree catalogue }
ears i ‘Texas—out, west one for the n 44 se fourth, and se fourth of “.COLLE GE!
se fourth, Sec. 6, and sw. fourth sw four mi Bi
' Birms
nine Te

\ get them a

yf the Unite’
thing. “We
| Sec ae 9, RTW west.
W itnesses to

Tie names the following
idence. upon,

have heard severa
118 continuous res

‘hundred, miles: is
‘for

A .PLEASAN

Vand two!

peing monfor®

108 ex-
ee: isle ube say ‘they’ would. give: libera a
@ fetal vr ee yere ection: © {BV a\ hard. times. no ran ‘there. ;
ljer.the ¢ acon Wi ings ks oath prove
Heala, the pbs) uch Pb ter ase ye yenree years ‘to do. any” s good, and cultivation af, said land, viz}: lo cheb
| ‘ vne tg ¥ 4) ‘ c0 4 i
gon ten ar Rev pea Self, pastor of sours Rare by ae coor ia ale Gu Pak Att Oat
‘Anct or masuse to thes Marion! Sy iy ra giiklin’ VOteAp a, ,MOle c, or css; nd . ae FRANK COUE Mat a i CARDS, *
(Oo | say pdry rye" 2a will, writé gel ee Registers" | WH directions.
te © | ects — -| game js to selec!
nes RODEN. pect’ ‘, ue me NOTICE Pr” | the party & and i
at 5" question$ {a tin
aad can be ple

: more; next tit i
‘Land, once at. ‘Huntsvile Ala: of
1887.

yrvom the aifice to cores :
ihe they are held cut, willipres each; here. on, next,
“Wave settled Sunday: Y Da Ach See te U.
“8h, ’ UR a . f 2,
ow!) BS Applings “Bs.” sAWhat. a pity ‘the new “Rhode |: cet April tet 1
t Notice is hereby given that the fol- | many: us 50 wil
d: settler: has filed no- they’ will ben
List of other ¢

Island Leg islature: does no
have to: elect aiUnited 1 State
Senator.” *Vhe clections ‘held
on Satur day ‘to ° decide ' ou
cases 10 which there was n0
election on Wednesday. ‘pefure

have resulted 50 that the Dem-

ocrats hav e.2: jean in the
‘This gives “the

Legislature. -
h oF entire s Slate

Democrats the
government, . and * Swill? ;make
SY “‘Licut-Gov ernor

4 them’ “dig: -con
jowing-name
ention: ‘to mak e. final

Nee ot histinte

roof i in support of his ‘claim, and

hat said proe will. be made betore

he probate Judge o of Winston Co,

at Double Springsy 4 Ala, , on. June
ad a; ys

bar, is here * ‘ab-
trtles ” to ‘a ‘large
ands -recently _ pur

Airs Us Adena

the Jasper
strachinyg
body ot Je
chased, DY.
nee rhe e PeRes

“y Rev. Mri. Poster:
interesting sermon
place, on ‘Sunday an
day, night: before,

Mr? Wilson, ‘on

tp]
rary, e20,Con-
|
:
|
|
|

Isl ye7." No, 126 ‘"
MAKGAREL M: LEAGUE. ys Having
‘Sear and:S w honorable !

and. repott

for the N-w qty
‘and, 1,5,¢; rin x “an "4
Qi te Atheffreast!

qr ne ay, a
neqrswat £; SEC “38, iiho! ig w:
He names the following “ itness- books ot
g eontinuous resi- finance “©

gacioe W-
1s credite

es to prove hi
county t'

7 ver
» 46: ne! Swill gend

‘tal! cai di) to ‘the
ty ‘GuivA sam-
‘the bandsomest |’

you the country, wil

f chi anges. i eptate
ees Na hy

delivered
gat’ this
cl: Satur-
Also. Rey.

‘Sunday’ “even-

wi
iy % roe ne

dence’ upon and cultivation of,
James Musgrove,

’

Ney =

Ba of sin rt ing at 4.0° clock. i
oSt6 one cen oO ae “a
wardcanad you will We icarn ‘that Mrs. Jno. Cay ot HONE |
Hae. | W Rich: ardgon,of Jasper “Ala. “Amendments will be submit- | said land vi
HIXIE”, v0. “| died from the e voots of meas— ed. to the people sy amending nee antinori Oe spouble vtead oF
binge, bs lies, on last Sun ay. § She ieaves the constitution ax to do AWAY | Spyings Ala. xe 12 | assessor’s
sate Gai four’. little with the - ‘postrictions “against Fran Goleman,—-Register. a deficies
ear al sa, large e fam- foreign born citizens - iwyoung, |e we as ed for.
sayille Ale Rm a 8 6 “her and also abolishing | the prop- pa de eile aR ares aad ae
ci ela ry jerty qualification, [hese two (s moe eee cn er. NM
eb ett at Peo aon Onl a Rites the: Stat ERY, EDITIONS: [bares
proof il mine be the Bear, the, negro: “who-was tatio®. changed Rhode Tslantt a ttn ‘THE a ofc
Infect Winstona, "| sontericed to hang at the last ie ue ere ert tic) ar ont a \ Canine |
{ALOT DR tor| erate of the: cirewt, court: at va ont.ydvertiagt” 5; 5 nigomery. aa
‘ollowing, witnesses to Jaspers was ranged ate that! *'SIt is. ‘yot pis love: "for © the [ehh Di 4 1 oeucat
ce upon, and) ylace Ol Friday, Apr i] USth. |race, NOL ‘his sympathy for the} ene ispu Ci there hi
sake there colored | man’s 5 * condition, “that [Is issued on Tuesday of every week | ¥¥ iso"
Sherman to. su the year——4 large eight-page pa- county
er, made up of the cream © the |shown
ta. | 1884. 2

Fos reside n

‘tand viz: John
eas Riddle and 1
rk, Ala. Ss
“CoLe MAN Registers

—Oo———
at Huntsville Ala. a

April, t 857.
“by given that the fol
A etter has filed no
ention to mea e fina

port of — leial. and
ec bee

induces Johnaic }
exchange, “courtises with him.

{lis. motiye is altogether a scl. |
fish one. *: bis earnest desire
to pecome father to a secon

class pres «idential boom is the |*
only incentive which INSPIRES
him to conceal his hypoericy
under the guise of friendship,

Wlorence W AVC,
aa ears :
nter sfeiters

A gang of cot

together with thet molds,dice
&e.% were, paptured in, Ws ank-
lin. county, recently « ye
Rhode’ "Teland
o calcul lated: “to
‘piek: as + “the
his party’ W rill |
as secu next
oe Ly

C.Long

explai:
this a’
-treasu
find n
“We
of tlre
‘Pir
‘due |
usico
se
Trea
| plor:
ble {
Ww

Weare’ jnformed
was a large collection of peo-
sie present to get a glimpse
‘\of the doomed man as he pac
sed from the jail to the scal-
fold—Le expressed » himself,
ready for the or ‘deal and will-
ing to dic. He also state
that whiskey Was the cause
Joe his killing ‘Nar. Wooten,
and advised bis hearers to
petal from strong drink <.
|» We bear men say that it is
| a desirable to live ‘where
epilly, goats: 10

it takes three. 91
climb oue jill, than. in a COUN=

trys where it takes: t three’; alli
gators to live, one yearels 'e
“Byidence 18 “already” outs
‘cropping that the inter y-state |*
commerce pill will prove Ene

of the most unpopuir meas.
Ra cua by, CONRTCES

Daily including
ant Telegraphic 2 and Market ae
ports, Live and Abie Editerivls. &
the Latest Supreme court decisions
and Local Intelligence. oe

| No one whe appreciates a first
class weenly Newspaper, Cate @)°"
ford to be with out it.

Its rapid extension | in sircuiation
and. the favor with it is univ. sersalty

regarded, renders it a
SPLENDID DVET? SING
y iM EDIU M.-

*Tts columns teem with the brght-
est and choicest. of news,’ and, are |,
a perfect refiect of the, worl d's: dat:

est doings.”
‘The manag ement = determined
ublication withit

this valuable “Pp
reach of t ALL, and to that end

established the followin low
Ratus OF SuuscRiIPTION.
One year, one “dollar; Six months.
fifty cents; : ‘Three months, 25 ctsié
DISts VOI PULB., ¢ CO,"

Mow’ TGOMERY ALABAMA |
‘ am |

, $C 24, »
he foltowi
: continuous “resi- =
dicultivation fs cit
as Be Densemore,
nas | William Harbin,
Thomas, all of: Ds, 10,\8

rings): ‘Be ae e ‘ast ¥
:* “NoTlOl. ES
» i* at Huntsville, et AaB ;

4 April, 1st,
wah ofven that ine ‘follow-

‘he news from,
is. not, shalt. 8

Se and
Samay

aaatt

Vee

rs
i (

OLEMAN, € ‘eek :

Land Office at Huntovill Ala.

hApril,1 ¢ 837.

: Notice +s hereby given that the fol-.

owing named settler has filed no

“tice of his intention to make fit 1al

roof in sup of his claim, and],
nat said proo ade beiore |
the: Probate Judge
Ala a ~ on May
Fa No 12286.

RT DENSEMORE, for the W 4
Nwa, andnw qr S wqr,a and

pnw cia Tu, Rg, W:

» following witness

his continuous resi-

“and” ‘eultivation: of,

said land, ‘viz: G. B. Detisean:

John Thomas, “William” ‘Harb ois
Villian sheen

=N OTIOE ‘

WL, nd. ‘mies at Muntsville,
May, 18
otice is hereby given that the follow-
ng named settler has: filed notice of his
jtention to make final pr oof in support

of. hiselaim and that’ said proof will be
made before the ‘probate judge of Wins
ton county, Aly at Double Spr ings Ala,
g 1887. ° lid to, 11662.. “hs

“OTEN RR. SIDE Ss;

g| he- = Howe ver, we can learn
nothing definite of the mafter.

cee
“The Georgia Pacific’ will
construct a. ‘branch. road from

a point. about 8'mules “gouth
| below Bull

‘| Barn. ‘creek ;

coal ; beds This” ‘toad. will

pass “through! or ‘yery : ‘near

Jasper —J asper Eagle.

J ack the Rabit, ¢ one of the

gang “of negroes Who nurder-
ed Pope Wooten, of Walker,
was. capture ed in Birmingham
recently. Ce

TheV incen st trial has heen

,. postponed to the‘ July,.:term

of: the: Montgomery -: Oily
Court. It - was set for Mon-
day, but: “ postponed because
of the. severe, ilness | ‘of one

‘lof the. chief State witnesses.

Wee Ay vyert anys 2308 4) rhea )

Mr, All au: “Addison, late of }.
Winston county; died at © his

eee “Tho tha é :
a “SPRINas,: ALAS me} th t’counity 1ast Sun

ti day. t..t. The deceased was
Re he} id n Eien: esteem,as a good
: citizen | ‘and neighbor, by the
_| geod people of ‘Winston, and.
oe Jhas many friends-in Walser |!
.25 per anoum in Advance. {whe will grieve to’ learn of
“ ek | ath. —Jasper Citizen.

Walter J ackson,alias“J: ack |’
the Bear,’ was ‘tried and con-
yicted ‘Wednesday, . on, the
charge ‘of the murder of Hen-
ol ey Pope Wooten, near’. Cordo-
;| va, in this (Walker) county,

on last Christmas..,,.. Phe. pen- |;
alty imposed by the jury was
‘|that he should suffer death by
“| hanging .Whe : evidence in
-lthe case was'so ° overwhelm=

ing; as to the. ‘atrocious, want |i

‘ onness , of the; homicide’ that
\the only.effort..f the defense
4| Was, to. rednee, -the. crime to
ey. 2nd. degrce ss
, *made : ‘Up. of
first.: class: ‘citizens, who eg gave
the case. due : cousider ation.
Their. verdict: was. evidently,
dispassionate | ‘and “conscien-
tivus, «4,4 Yesterday ; Judge
‘| Sprott-sentenced the: ‘eonvict
{to be executed. at Jasper; in’
|the? manner..as.. required by
law’, on. the 15th day ot April
1887. Citizen, ‘Mareh,. “

TRIE SESE

ON.

;
a we
a Ad
an SH xD “
Sita? HRA 4
ae wie 1 ¢ rs

ra a

HE: RIGHT---THH WRONG, COM DEM: jj: fine
ie ENUARY, 604 88

ae vt

GS,, WINSTON, €O., ALA.

Neyo lhe UNDERW

) DER CASE 4

ohh
Bi at ey e BESO ARENT 4 sinrer anv Deck: Git
\COB The Sheffield correspondent 5 argpepenits ra Pe
ba 9| bf the NorthAlabamian says:|o) yy sogan®: died ‘at: 2:57
- Mr, Alexander, Sheriff of eu ne A eee a
Colbert, county, on.a requisi» fing het vn to Mi : poi “
‘nt that inventive Miarere ser anal and friends, had not been un-
ne ee ay ae ’ -. +s re
— ‘Thursday moruing’ atl ,took = ae se : Trt phy a ee
«{him over to the.Colbert coun-| oe rday Ben aa ies vivations name is not®.certainly. k
LO oa towards brat comilion Ot] h «pases “uur several
ty, ase. ats Ticeumblts 1 | which hod eat proscutins a) 00 Te. Tyo. ot which we Leann’
of. murdety ‘alleged :.to have greater, “ors less : degree ,and aliases, two of whiell We AOLMY OS PS
been “committed in: Blount hag geen midair 2h Mama eae ae ae Pee:
county Jast, year The yoting mS ae severity during his ee roeapaieek: ue if) nck) Bent (yd
CONEY a SN are aE He [eee eae aha vonat lank appedre that; Jack, ran 2 00 hii
anis, barely) .t 7 122 | them’ to-expedt’ that worst.2h), ood), & Morgan’s} grocery 1 ft
_ The racking pains which he got a pistol | and went: ims Segue ih e
gulered . during , his: illness, mediately back int thie | ditlecs 5,75 te
yielded to. treatment , but left | tion from which he had.come;.
him in a:weak-and exhausted ‘arid the port of a pistol was -:
sed: thro’ | eondition; «. from aowhich: he | soort heard. in the direction: hess!"
never yaliedl, and upon which
the'fi ever preyed with increas-
es ne yiolence: until the: how".
2 GRCAN: for Sheffielil on ‘hufsday.afe tig death 3944 | the’ ho oe
Med EE Tce ee dehnete mak Raa After lastnight: his» pulse
Piano Stosia. =’ | lel wyood oft Tuesday? AB het ony weaker and weak ee,
en Jublerbreled gun 8s Croce ty omg Ns
| a9a}.09, rahe his actions. weres susplis condition. Wass such jas*; to
gibi leions; a’ detective, was put oD | gause great feat ot his immies hiad ‘been ‘shot: <where the Pause:
diate. deaths ® = After this-he | pistol, report ..wa § fitst heard.) aneiea
rallied sonietyhat'iand*até the. and was .riot¥yet dead |) His Zao ypat
consultation+*-which wus held statamdnt:was sthitt ,he.was
at,9 o’clocksthig mornings: his|Shot by the.negro:' JS ick, Bears,
pilsé.was found ‘to, Uet;some- He lived.scveral,liours but his

AD, 34
’ nae.

f }
t

ah GR
yy,
s

j
ne ate

MB
Vee
ars

Tap oat,
tee .
Sate
ns La
ht
IT ORG pede

whitistrongérg but his gener= statements wei'e-¢onfused and, m
y

‘al dondition was "not such jas }7 pstisfactory ye anehido danny

ys }
a,
ry
H

abont five;m
1 Vi : ay fara, ile‘wi i 1c ms; phrte fal C Sper” ye on TANTS ov ee ' rt ny r.* Bay teeth yy: eS ee ne, is y
this: placesyW hile with, these to give’ aly hope ofsultimaty eS dck:thas notibeén‘enpturs aeink

‘ e ’ . 1 , ¢ ‘ : - ¥ 4 . iy.

gentlemen’ :he , passed , wider | recovery. 93 Dre Braxter\re~ ed, 2%, Brit, “three, negroes |
Bus peeted.o f£. being partie ps
criminis, ave In jailsand -will4,
perhaps have a “preliminary
week =-d asper Cit}

of young Underwooil.2-Ma--
rion [Cotinty erald cvryeek:

4 FRANKLIN

’
a:

‘
7

byt

fo ge: ate
“32 eat AONE Prtp
r p Pats S04 aA
pane y
oH SpAPOe,

A RIDING FIN.
ATT aa aw

eee AS hie Bee Le FA &
ahs SOOTINTY es he q ‘

0
on

oekon
Gi'é

pts Gt a a
“4” :

: Raed Stublilefield at a crosked,

aa)

James slipped to the window of Clayburn's house and shot him while he and his wife
and sister-in-law sat by the fire reading the Bible, Two chairs were struck and the
Bible and lamp were both hit. Mrs. Clayburn was burned by a bullet, In less than an
\ hour Clayburn was dead, ‘The following day James and his brother«in-lhaw were arrested,
‘and when arraigned before the county judge he told the judge to give him the lowest
fine, that he wanted to 'pay it off,'' The ‘case has attracted wide attention because’.
of the plea of insanity set up by the defense. The court room was crowded with hearers -
when the Solicitor, Dave KH Almon, asked at the hands of the jury the death penalty ~
there was intense interest," ADVERTISER, Montgomery, AL, Auge 9, 191i (23/A1.) bes)
; ' a ages

» ‘ ’ 7 : , ; C

=99 =

for their trials, they were guarded by National Guardsmen and after
their convictions they were again returned to Birmingham to await
their executions, There was no appeal and all three were returned

to Decatur on the day set by the court and hanged from the same

Steele because he feared that the officer planned to kill him, His
neck was not broken by the fall and he died of slow strangulation,

Source; BN, June 16, 1905,

| gallows. Prior to his death, Jackson stated that he had killed
JAMES, George; white, 19-years-old, hanged at Cullman, 4la.,
on August 6, 1915. A high school graduate, James Lived and worked
on his father's farm near Holly Pond in rural Cullman County,
During the fall of 1912, he frightened a black youth who worked
for a neighbor, Enoch Claiburne, causing the boy to release some
mules which ran away, Claiburne had a warrant issued — James!
arrest and, ab the time, James uttered a threat to kill Claiburne
at some future date, In January, LIL, wiile Claiburne was seated
in his home, he was shot tivoubh a window and killed, James and
his brother-in-law were arrested the next day and while the latter
was subsequently released, James was tried, convicted and sentenced
to die. His defense was one of insanity and while it was shown |
that he had been drinking at the time of the murder, wibnesses tess
tified that he was not drunk, Following an unsuccessful appeal to

the Alabama Supreme Court, he became the only man to be hanged in

the history of Cullman County, Sources: CULLMAN COUNTY ACROSS THE
YEARS, by Margaret Jean Jones; Cullman; Modernistic Printers, 19753,
p 38; Letter and telephone conversation with Bob Higgenbotham, for-
mer Assistant Chief of Police of Cullman and first cousin to Mr,
James, Route 2, Box 286, Hanceville, Ala., 35077; 193 ALABAMA 55

(69 SOULHERN 569).

69 SOUTHERN 569 - ae. pe, oe aS ; |
(193 ALABAMA 554). 942i a.

JAMES, George, white, .20,-hanged at Cullman, Alabama ori 8-6-1915. _
"(Special to the Advertiser.) Cullman , Ala., August 7, 1915-The first hanging in Cullman
County took place yesterday morning at 11 o'clock when George James, a young white man
convicted of the murder of Enoch Claiborne, a farmer, died on the gallows at the county
court house ‘heres) James went to his death quietly. He ‘stood calmly K#X#HEXXKSX#NAHIEE
facing the MURHALLA AX AX ABBUK AKAN AA TUSK AA XXW XAWKET RRA AK ABUL AME XAAZUAR sheriff as X two
deputies adjusted the noose. 'Make a quick job of it,' he said to the sheriff and a
second later the trap was sprung Fifteen minutes after this doctors pronounced him dead,
"The murder of Claiborne, the arrest and confession of James, and the subsequent attempt
to commute his sentence on the ground of unbalanced mind, created situations of intense
interest and rumors of trouble were J###X4 prevalent when it was learned on the day #H&s
UXACALWEX KUSAMANAZAHF preceding the hanging that James was to be hanged, Many, believing
his mental condition unsound, thought that his 4## sentence should be commuted to life
imprisonment.

"Enoch Clayburne, the farmer killed by James, lived twenty miles from here, James be-
came angered at him because of some trouble between a negro boy and himself, Clayburne
took the part of the negro and it was for this reason that he was killed by James, The
murder was committed in January, 191). Clayburne was killed while reading the bible aK
WXHXKXHBAASXEXHAS a t+ his fireside, and his wife sat holding the lam for him to read.
"James told the whole story in an examination before Judge Re J. Burke. He went into
minute details, and at the conclusion asked the judge to ‘let him settle up' and to give
him the lowest fine,' His attitude in this led many to believe that he was mentally
deficient. James Left a signed note to his wife and after the body was turned over

to her, no one was permitted to see it. The funeral took place Saturday near Bremane"
ADVERTISER, Montgomery, AL, August 8, 1915 (5/3)

"(Special to the Advertiser.) Cullman, ALA, Aug. 5. =< Although rumors of trouble are
persistent and immense crowds are expected here tomorrow when Goerge James, a young
white man, will hang for killing Enoch Clayburn in January, 191), no extra precautions
have been taken, and the prisoner will be brought here tonight from Decatur, where he was
placed in jail for safety. No action has been taken by the Governor to commute James!
sentence and the execution will take place at sunrise, Many believe that James is
mentally unsound,"

ADVERTISER, Montgomery, ALA, 8-6-1915 (two-four,.)

"(Special to the Advertiser.) CULLMAN, ALA. Aug. 3. - The scaffold is erected on which
George James, 20 years old, is to be hanged Friday for the murder of Enoch Clayburn,
twenty miles from this city about 18 months ago, Prominent citizens have been aroused
in behalf of the condemned youth who is claimed to be almost an idiot. L. N. Buell,
George H. Parker, Je Ge Imbusch, W. G. Hill, Mayor M. Le Robertson, seven jurors who
convicted James, and §80 citizens have joined in petitions to Governor Henderson

to commute the boy's sentence,

"James was a high school boy unable to go on with his studies and was compelled to quit
school when he married a little country girl, after the fashion of his section, and
this girlewife has borne him two children, After committing the decd, with no wit-
nesses against him, James, who is weak-minded, declared before trial Judge Burke that he
was guilty, and asked for the lowest fine, believing that he could pay in money.

"The interest in the boy's unfortunate condition has become widespread throughout
Cullman County and strenuous efforts are being made to save him, If the execution
occurs, it will be the first legal hanging in Cullman County,"

ADVERTISER, Montgomery, ALA, 8-l-1915 (10~-three.)

"(Special to the Advertiser) Cullman, Ala., August 8, 1911. = Murder in the first degree
was the verdict brought in late today agagpst George James for the wanton killing of
Enoch Clayburn, The defendant was sentenced to be hanged on Septmmber 2h. The case was
appealed. This young man, age 19, married, having two children, had trouble with an old
man named Enoch Clayburn, a neighbor, who had a negro boy for hired help. The evidence
showed that James had in timidated the negro, and had shot him, and that Clayburn had

ken him aside and warned him not to trouble the nezro again, James had also been
ioaea in jail for carrying a pistol, which he charged to Clayburn.e On Januaryl9th last,

vee eee ES SE eee Ee eee eee ee ae | ae bia a a
rc ;
{

_ nes Lee nn Anbsie Coc 9
| : CC satearcen County Public Library 7 / Co

200 CLARK STREET, N.E.

Cullnan, Alabama 35055
Feburary 2,1977

y Watt Espy, Jr.
Box 67
Headland, Al, 36345

Dear Sir

I'm am writing to let you know that we did find the information
you were asking for, Cullman County's first and only legal
hanging for a crime took place on September 25, 1914, when
George James was executed for the murder of Enoch Claiburne,
This information was acquired from Margaret Jean Jones book,
Cullman County Across the Years.

Also included in the book is the story of an illegal hanging.
You might be interested in that, so I will enclose a copy.

Glad we could be of service to you.
Sincerely,

Bata P Helin

| Bettina P, Higdon
‘Administrator

By Enclosure

BPH; dls

Route #2 Box 286
Hanceville, AL. 35077
February 13, 1977

ead

Mr. Watt Espy, Jr.
P. 0. Box 67
Headland, Alabama 36345

Dear Mr. Espy:
The Probate Judge of Cullman County forwarded your letter of February 4
to me for reply.

I am a first cousin of George James and the Judge felt I had more
complete information regarding his execution than did his office.

George was found guilty and was hanged on August 6, 1915. I have
the complete story of the crime in my memory, however, I do have pictures
of the actual hanging, newspaper articles and the last letter written by
George a few minutes before his death. This letter is a combination of
Last Will & Testiment as well as a personal message to his family. The

letter was given to Dr. Meydory who was the attending physician at the
hanging.

I will be happy to supply you with copies of these documents iff your
writtings are to be "research". If your writings are to be used as

opposition to Capital Punishment, I would hesitate to supply any information
for this purpose.

As a former peace officer, I feel we need Capital Punishment.

With kind regards, I am

tok hezyp pcncfdtho—

Bob Higgenbotham

OTM jst (kage (aes

6. CRIMINAL LAW @==448 —- Insanity — EvI-

DENCE—ADMISSIBILITY, ig

That the mind of accused, relying on insani-
ty, had not been very strong since he had a fever
a year before the offense, was properly excluded,
as the mere opinion of the father of accused,
seeking to so testify.

[{2d. Note—IlFor other cases, see Criminal
Law, Cent. Dig. §§ 1035-1039, 1041-1043, 10-45,
1048-1051; Dee. Dig. €-448.] .

7. CRIMINAL LAW @==@465 — Insaniry — EvI-

DENCE—A DMISSIBILITY.

A nonexpert witness, testifying to the in-
sanity of accused, must state what acts of ac-
cused he has seen, and then give his opinion
as to his sanity, but cannot testify that he has
scen acts of insanity..

{Iid. Note—TFor other cases, see Criminal
Law, Cent. Dig. § 1057; Dee. Dig. @465.]

8. CRIMINAL LAW @=2457 — Insanity — Kvi-
DENCE—ADMISSIBILITY.

A witness for accused, relying on the de-
fense of insanity produced by intoxication, may
not testify that while accused is drinking his
reason is dethroned, or that he then displays
acts of insanity, or is not responsible for what
he does.

[d. Note.—For other cases, see Criminal
Law, Cent. Dig. § 1046; Dec. Dig. 6-457.)

9. Homicips ¢<7180—INSANITY—IHVIDENCE—

ADMISSIBILITY.

hat accused, relying on insanity produced

by intoxication, was on another occasion, when
drunk, in such condition that no one could do
anything with him, was properly excluded as ir-
relevant. ‘

[Iid. Note.—For other cases, see Homicide,
Cent. Dig. § 381; Dee. Dig. 180.]

10. Womricipe @==28 — INTOXICATION — DE-

TENSE.

Insane conduct or mania resulting from
present intoxication of accused, charged with
murder, does not excuse the crime; and where
there was no evidence-to show any fixed insani-
ty, resulting from drunken habits or otherwise,
abnormal conduct and conditions of accused,
associated with present drunkenness, may not
be shown.

[Iid. Note.—Iror other cases, see Homicide,
sey" Dig. §§ 44, 45, 46, 183; Dec. Dig.
YS
11. GromnaL LAW €<8304—Evipence—JUDI-

CIAL NOTICE. ‘

The court judicially knows as an establish-
ed truth of medical science that many forms of
insanity are inheritable, and may recur in vari-
ous individuals collaterally descended from a
common source.

[Id. Note.—For other cases, see Criminal
Law, Cent. Dig. §§ 700-717, 295114; Dee. Dig.
6304.]

12. Ifomicipe €-179—INSANITY—EVIDENCE—

ADMISSIBILITY.

Evidence of the insanity of one or more
members of accused’s family, immediate or col-
lateral, is not admissible, except in connection
with other evidence directly showing that accus-
ed is insane.

[d. Note.—For other cases, see Womicide,
Gent. Dig. § 380; Dec. Dig. G179.]

13. Hoxwrcipe €-179—INSANITY—HVIDENCE—
ADMISSIBILITY.
That the mother of accused and a maternal
aunt were sent to the asylum may not be shown
in defense of the insanity of accused, in the ab-
sence of anything to show the sort of asylum
they were sent to, or why they were sent, and
what their mental condition was at the time.

[d. Note.—For other cases, see lomicide,

570 69 SOUTHERN RWPORTER (Ala,

14. Crmminan Law €=448—Insanity—Ivi-
DENCE—ADMISSIBILITY.

Opinions of witnesses acquainted with the
relatives of accused, relying on insanity, that
insanity runs in the family, are incompetent, be-
cause mere conclusions.

(Jad. Note.—For other .cases, see Criminal
Law, Cent. Dig. §§ 1035-1039, 1041-1048, 1045,
1048-1051; Dee. Dig. G-448.]

15. HomicipE G=179—INSANITY—EVIDENCE—
ADMISSIBILITY.

The mere fact that a maternal aunt of ac-
cused, relying on insanity, is insane, and contin-
ed in an insane asylum, may not be shown in
support of the defense of insanity, unaccompa-
nied by any evidence of the nature, extent, dura-
tion, or symptoms of her mental disorder.

[Ed. Note.—I"or other cases, sce Homicide,
Cent. Dig. § 880; Dee. Dig. @179.]

16. HomicipE @==27—INSANITY—EFFECT.
That aecused was, at the time of the killing
of deecdent, so mentally unbalanced as not to
know the consequences of his act, is not per se
a palliation of murder, under a_plea of not
guilty, nor an excuse therefor, under a plea of
insanity.
[id. Note.—For other cases, see Homicide,
Cent. Dig. §§ 4314, 44; Dec. Dig. €27.]

17. CRIMINAL LAW €=S11—HomiIcipEe G24
—INSANITY—INSTRUCTIONS.

A charge that if the jury believe that, at
‘the time aecused shot decedent, his conduct and
acts were such that he was so mentally unbal-
anced that he did not know the consequences,
that fact should be considered in determining tbe
verdict, was properly refused, as misleading, and
as singling out evidence for the consideration of
the jury without stating any proposition of law,

[Eed. Note.—For other cases, see Criminal
Law, Cent. Dig. §§ 1787, 1969-1972; Dee. Dig.
€=e28i1; WPomicide, Cent. Dig. § 605; Dee.
Dig. €=294.]

18. LlomrcipE @==294 — INSTRUCTIONS — MI6-
LEADING INSTRUCTIONS.

An instruction that evidence that accused,
relying on the defense of intoxication at the
time of killing decedent, was intoxicated at the
time, was admitted as bearing on the question
of premeditation and deliberation, and if, after
consideration of the facts, the jury have a rea:
sonable doubt of the guilt of accused, they must
‘aequit him, was properly refused, because mise
leading in its suggestion of acquittal because of
accused’s intoxication, while on the evidence

guilty.

Cent. Dig. § 605; Dee. Dig. €=2294.]

STRUCTIONS.
A charge requiring an acquittal of murder

deaf ear to reason, was properly refused.
[id. Note.—lIor other cases, see Homicide,
Cent. Dig. § 605; Dee. Dig. €=2294.]

DovuLbr—INSTRUCTIONS.
A charge requiring the acquittal of accused,

any reasonable doubt of his sanity, was properiy
refused.
{id. Note.—For other cases, see Criminal Law,

Gent. Dig. § 880; Dec. Dig. €=179.]

1966, 1967; Dee. Dig. 752.)

comes: <

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

there could be no acquittal on the plea of not —

[Iad. Note.—For other cases, see Homicide, — 4

19. Domicipe 6294 — INTOXICATION — IN- |

in the first degree, if accused was so drunk or ©
mentally unbalanced as to cause him to turn 4.

20. CRIMINAL Law €==782 — REASONABLE —

if the evidence leaves in the mind of. the jury #

Cent. Dig. §§ 1847, 1849, 1851, 1852, 1si%,
1878, 18SO-1882, 1906, 1907, 1909-1911, 1000,”

would
it. 11:30
jaintiff,
ifter he
i to see.
i, as he
haggage
jue for
unager
ease to
paying
it case,
to the
ie clerk
» man-
e next
‘| print-
‘IL bills
ut dis-
a guest
demand
to pay
il that
ise con-
» regis-
irry the
Plain-
ty, will-
times,
had the

| tea nov

o
» morn:
‘od lan-
evaded
that in
quarrel,
dl for
pected
io lobby
This
ff had
ing his
iis subs
~he de
t those

ode bee | ys "

visited
‘ilyeand
/ on they
iurther

afluenc .° @

‘aintiff

f6, ads

iad the
i. It
of the
vvever,
vet the
‘t from
rewith, »

~ of the plaintiff in the sum of $150. We have

@ tn cases of this character, even the trial

Ala.) JAMES

JAMES, George, white, hanged at.Cullian,;:Alabama, on 8-6-19156
= 9

v. STATE 569

and the hotel was not liable for any such/for that of the jury and the court below.
indebtedness. This defense was based upon! The rule is that, in cases of this character,
the theory, as we presume, that on account! a judgment will not be reversed on this
of inability to locate plaintiff their suspicion ground alone, unless the amount is so ex-

Was aroused, and they had the right to eject
him for nonpayment of his bill. 22 Cye.
1075; Beale on Innkeepers and Hotels, ¢. 9.
The case does not require a treatment of this
question further than a statement of the
general rule that when one has shown him-
self admitted ag a guest the burden is on
the innkeeper to justify ejectment of him.
Beale, supra, § 101.

[3] If the question (objections to which
were sustained) embraced in assignments of
error 9, 10, and 11, should be conceded as
calling for evidence material and relevant,
we are of the opinion that no reversible er-
ror could be predicated upon this action of
the court. The defendant made no offer to
show by the house detective and page what
In fact they did, and the witnesses for de-
fendant (including the clerk) were permitted
to testify without objection, and without
dispute, that they had tried to find plain-
tif’, but were unable to do so; and the man-

cessive, or so grossly inadequate, as to be
indicative of prejudice, passion, partiality, or
corruption on the part of the jury. Cen.
Ga. Ry. v. White, 175 Ala. 60, 56 South. 574.
In the light of the above-stated rule, and
upon Careful consideration of all the evi-
dence, we are unwilling to say that a new
trial should be granted upon this ground, or
that the verdict is so excessive as to call
for any action by this court.

No reversible error appearing, the judg-
ment of the court below ig affirmed.

Affirmed. ‘

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

JAMES v. STATR. (No. 929.)
(Supreme Court of Alabama. June 17, 1915.

ager testified that he “went to his room a
nunber of times, day and night,” and was
unable to find him there, “or anywhere else
about the hotel,” or to get him over the
phone in his room. The matters defendant
expected to elicit by the answer (as disclosed
by statement of counsel to the court), to the
effect that the witness had the house de-
lective to look for the plaintiff, ete. really
amounted only to directions given by the
witness, and were such as should have been
proven by the detective himself as to what he
dld; and this would apply also to the clerks.
As previously stated, the witness manager
had testified without objection to the effect
that he had made all reasonable efforts to
locate plaintiff in the hotel.

[4] There was no reversible error in ex-
duding the letter (assignment of error No. 8),
Which was shown never to have been receiy-
ed, or read, or shown to plaintiff. In addi-
Yon, the writing of the letter and placing it
in the box at the hotel for the plaintiff was

Proven without objection, and we are unable | Cent. Dig. § 381;

to see how the failure to show the contents

On Rehearing, July 2, 1915.)

1. Homicipr €=180—MurprEr 1n THE IiIrst
DrGree—EvIDENCE—A DMISSIBILITY,

Accused, charged. with murder in the first
degree, may show that he was so intoxicated
at the time of the killing as to be incapable of
understanding that he was comnitting a crime,
to disprove existence of Specific intent essential
in murder in the first degree.

(Id. Note.—For other cases, see ITomicide,
Cent. Dig. § 881; Dec. Dig. €>180.]

2. CRIMINAL LAW €=491—OPINION EvipDENcE
—ADMISSIBILITY—INTOXICATION,

It is not competent for witnesses of accused
to testify that his intoxication rendered him, at
the time of the killing, incapable of understand-
ing that he was committing a crime, since that
is a conclusion for the jury.

[Ed. Note.—Ior other cases, see Criminal

Law, Cent. Dig. §§ 1040-1042; Dec. Dig. >
451.]

3. HomicipE €=>180—Murprer IN TUE First
DEGREE—EVIDENCE—ADMISSIBILITY,

That accused, relying on intoxication at the
time of the killing, offered a witness a drink

shortly before the killing, was immaterial.

[Ed. Note—fFor other cases, see Homicide,
Dec. Dig. €=>180.]

"of the letter to the jury could have prejudic- | 4,Homicripz @=180—Murper In tus First

el any right of the defendant, as its contents

Dra REE—EVIDENCE—ADMISSIBILITY.
That accused, relying on intoxication at the

disclose that it was, to say the least of it, time of the killing, had been drinking at other

(§] The jury returned a verdict in favor

far from compli a in | times, did not show incapacity to commit murder
tone pementary and pleasant in at the time of the killing, and questions as to his

; 94 condition ag to drinking on prior occasions
were properly excluded.

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

. bot here undertaken to set out all the evi-| Cent. Dig. § 381; Dee. Dig. @=180.]

dence, but it has been carefully reviewed.

tourt will not set aside the verdict merely

5. CRIMINAL LAW @=2456 — INTOXICATION —

EVIpDENCE—ADMISSIBILITY. ;
A witness, testifying that accused, relying

because, in its opinion, the jury gave too|on_the defense of intoxication, was drinking
much or too little: and when the trial court and acted queerly just before the offense, may

bas refused to disturb a verdict on account
of the amount recovered, the appellate court

not testify that he considered accused mentally
unbalanced at that time.

(id. Note—Ior other cases, see Criminal

@=For other cases see same topic and KEY-NUM

BER in all Key-Numbered Digests and Indexes

HODGES, Amos, hanged Escambia Co., Ala. 7/8/1893

HISTORY OF
ESCAMBIA
COUNTY,
ALABAMA

Annie C. Waters

THE STRODE PUBLISHERS

Huntsville, Alabama
Property Of
Houston-Love Memorial Library
Dothan, Alabama

HODGES, Amox, black, hanged Escambia Co., Ala.

July 8, 1893
OF
: la

Anr-é ©. Wate:

4 THE S° ODE PUBLISH !iRS
F isville, Alabama
Property O71

Love Memorial |. brary
than, Alabam«

*»

The Murder of Rose Stainback oe

A black woman, Rose Stainback, was to saad Penna
i ourt action against Amos Hodges, a black ma : ae
ie umber of threats against her life, and on Ja :
aes me to her home and shot her with one barrel si i
pie “barreled shotgun. Amos was arrested on se Ha
vine tched tracks found at the scene, and beside the ee
caine calico scraps and paper that had been used as % hg
aa on Hodges’ house was searched and a concealed _
a ae hot un was found. One barrel had been fired an e
oie ‘ i a wadding that matched the calico scraps oe
a Paaaails house, and the buckshot were similar to those
the Sial 5

i ’s body.
i behind Mrs. Stainback s ;
Oe ne ee Hodges refused to affirm or deny that he ha

i S$ ap-
illed the deceased. Hodges was convicted and a es wa oe
ea d to the Supreme Court. A new trial was of e anna
ep ive the following defense-
ial j d refused to give
i: Ta the way. ‘‘That a reasonable doubt is defined to be a
charge : es
ich a reason could be giv
Se evthe a Court accepted the confession of Hodges

ordered to handcuff McDtffie. ‘
Marching Marshall in front of him, Burrows left the
locking the manacled McDuffie inside. Then the two went ‘fe

and Burrows force

& a painful but
out into the:
e bandit. Burrows emptied o
but sank down on the street ant

The remains of the notorious Rube Burrows were shippedae
Birmingham, and then taken to the Southern Express Com Dani
office where the coffin was placed upright in a corner, so thatay
appeared in a standing Position. ‘‘His sombrero was placeday
his head, a pistol put in each hand, and his favorite rj

i of
tal * that the half-loaded gun was his; ruled that ~ AL
against him. He appeared just as during life.” Then his p 4 that HEE eae eet iar hie feilure to say if he ha
taken, the coffin lowered, and the waiting crowd was edito 4 motive . SE ee, eo don of cailt, and that the cel ion
view his body. He was then shipped to Lamar County, Alabama f notkille Sostaiuts were-nt adenussaile Toe conv :
oe reed 3 si — a time and given the death sentence, which was carr
It is to be regretted that the close of his career could n ; ae. 2 nea: ime a |
ilustrated the wise use of the gallows. : q out on July re iba: oie a McMillan i
The severely wounded Carter was bedridden for six veeks q = lidbe aneat eabliczedschne ia Eaters bi
under the care of two Mobile physicians. In time he recovered wut a

was permanently lame in his left arm. a

The $7,500 reward money was held up for some time dueto;
controversy between McDuffie and Carter as to who she
receive it. It was settled in August 1891, with the largest share]

a :
was the murder of County Sheriff Edward S. McMillan by
i d Bill. ; 7
Fe toad Bill, alias Morris Slater, alias Be a la ae

tis a mulatto who came to this area about 1892. His tr

~ 4
=O ones! =

u i i d many to
e person, which cause
given to the disabled Carter, who was then running for sheriffags ® never known. He was abetend in Bee Acerca due
: uae celved @ wonder if he was an esc .
€ngo County. Marshall and Hildrith were said to have received
$100 each.§ “2

Wi ifle inside his
F to the fact that he always carried his Mees ta aortiwen
B left trouser leg. He roamed south Phe law was at Bluff
q Florida, and his first encounter wi on ton twice warned
o. Springs, Florida. Deputy Sheriff Allen eam in his rifle, as it
E him that he would have to buy a license or tur

Burrell Martin, an accomplice of Burrows in the Flo mator
robbery of about $1000, was arrested in Texas and brought reek
sacola News stated that Martin was wanted for several m

“a
urdérs
be”
ae

HOIGE, Amos, black, hanged Brewton, Alabama, 7-7-1893.

164 SOUTHERN REPORTER, Vo. 12. (Ala.

admitted as true in every step taken in this
suit: The lands wereoriginally the property
of Mr. McGough, in which Mrs. McGough had
no interest or claim save an inchoate right of
dower, conditioned on her outliving her hus-
band. He owed Mrs. Reese and the bank
bona fide debts, executed the mortgages to
secure their payment, and Mrs. McGough
voluntarily united in the mortgages, thus
relinquishing her dower right in and to the
lands, to an amount equal to the debts se-
cured. Large sums of the debts remain un-
paid. If before the foreclosure proceedings
were had Mrs. McGough had sought to re-
deem the land from under the mortgages,
will any one contend she could have done so
without paying the entire amount of the
mortgagedebts? And if the foreclosure pro-
ceedings, she not being madea party, neither
enlarged nor abridged her rights, can any
principle be conceived which would author-
ize aredemption by her on terms less oner-
ous than she labored under before the incom-
plete foreclosure? Does not this show that
she was dowable only of the excess of the
estate and interest that might be left after
paying the mortgage indebtedness? But we
need not pursue this argument. The au-
thorities are overwhelming that to redeem
in the conditions shown in this record she
must pay the entire sum due on the mort-
gages. 2 Jones, Mortg. § 1067; Collins v.
Riggs, 14 Wall. 491; Chiswell v. Morris, 14
N. J. Eq. 101; Wilts. Morty. Foree. 191;
Ross v. Boardman, 22 Ilun, 527; MeArthur
y. Franklin, 16 Ohio St. 195; Gibson v. Cre-
hore, 5 Pick. 145; Newton v. Cook, 4 Gray,
46; McCabe v. Bellows, 7 Gray, 148; Wheeler
vy. Morris. 2 Bosw. 524; 1 Jones, Mortg. §
812; Denton v. Nanny, 8 Barb. 618; 2 Jones,
Mortg. § 1075. The wants of this case do
not require us to determine what interest
Mrs. McGough would have acquired in the
land, if she had been successful in the at-
tempt she made to redeem it. Reason de-
clares that, the interest and right the law
secured to her being only a life estate, all she
could lay claim to as a mere dower right
would be to be endowed of a life estate.
This because nothing bad been done which
could either diminish or increase those rights.
They had been simply lett in statu quo.
This is theextent of her dower right secured
to her by the law. But, having been re-
quired to pay the entire mortgage debt as a
condition upon which she would be permit-
ted to assert and enjoy that right, what new
right or interest does the redemption secure
to her? Reason would declare that, inas-
much as her unforeclosed dower right had
secured to her the right to redeem, and inas-
much as she had, in virtue of that right, per-
fected redemption by paying off the entire
incumbrance which hindered the assertion
of her dower right, the interest she would
acquire by these combined processes would
not be limited to a mere life estate in one
third of the land. The authorities on this
question are not in strict harmony, and we

will not declare what is the proper solution,
We find no error in the record, and the de-
cree of the chancellor is aflirmed.

(97 Ala, 37)
HODGE v. STATE.
(Supreme Court of Alabama. Jan. 11, 1893.)

Homicips —EvipeNcre — INSTRUCTIONS—REASONA-
BLE DoubBr.

1. On a trial for murder it appeared that
colored scraps of cloth, blackened as if by shot
and powder, were found at the place where the
shooting occurred. On the day after, the sher-
iff went to defendant’s house, and after a
search found a gun, which had been hidden;
one barrel of the gun had been discharged, and,
the load being drawn from the other barrel,
scraps similar to those discovered at the place
of the shooting were found. J//cld/., that the
scraps found where the shooting oceurred and
those taken from the gun were competent evi-
dence to connect defendant with the shooting.

2? An admission by defendant that the gun
belonged to him was competent evidence against
him, where it appeared that no threats or other
inducements were olfered to procure such ad-
luission.

3 It was error to admit evidence of the
shoviff that tracks or impressions made by a
shoe taken from defendant’s foot were the same
as the other tracks made and seen near the
place of the killing,

4. Evidence ot the pendency of another in-
diectment against defendant for another crime,
in whieh deceased was a Witness against him,
and that he had made threats to kill her, was
competent to show defendant’s motive in killing
her,

5. Defendant testified in his own bchalf,
but failed to deny the shooting or killing, and
the solicitor for the state, in his argument to
the jury, asserted that such failure to deuy the
shooting was apn admission that he had done it.
Held, that it was not error to overrule a motion
to exclude such argument, where the court then
and there instructed the jury that such failure
to testify was not an admission that he did the
shooting, but that it was a circumstance to be
considered by the jury in connection with all
the other evidence.

6G. A “reasonable donbt’ is a doubt for
which a reason can be given. Cohen y. State,
50 Ala. 108, approved.

Appeal from circuit court, Escambia
county; John P. Hubbard, Judge.

Ainos Hodge was convicted of murder in
the first degree, and appeals. Reversed.

The evidence introduced by the state tend-
ing to prove the commission of the crime by
the defendant was purely circumstantial.
The facts and circumstances are sufliciently
brought out in the opinion, The rulings of
the court upon the evidence, and as to the
argument of the solicitor, are also sufliciently
stated inthe opinion, and need not be noticed
here in detail. Upon the introduction of all
the evidence the defendant asked the court,
among other things, to give the following
written charges: (1) “The court charges
the jury that the evidence must satisfy them,
beyond all reasonable doubt, of the existence
of other facts necessary to constitute the
offense charged.” (2) “he cout further
charges the jury that a ‘reasonable doubt’ is
defined to be a doubt for which a reason can
be given.” ‘he court refused to give each

o Sk SR Ret tere

SPREE Oe Ee oe

’ a
Bs:
a
iB
*

ER: 24, 1888.

3 ita ore.

<1 ae in-
yport-
farious

rags
Thing

in Weopt
geurties

3 Ne ost”

| of. “execution, *

s| the execution.

‘| tions.”

-|justing the noose and : pogems

‘| with God and was ready ‘to dio.

“habe het:

suspended in the air. ~

| derer a burly negro man of 23,

\.while the hands-on Mr.

st ye

A, 4, COLORED (MURDERER WHO. BELIED

John Hotinsss Shot iIis Partmour in Cold
Blood and Paid the Ponalty in Marion
ayrise ok pater sawce Lypctiy EL Ay Se Na

‘ ale

¢ ike in

fa Citaae it: Rov. 23.—Marion to-day
had tho first hanging she has had in

-mmany years..’ John Holiness’ peid : the
extreme penalty of law. by doath: upon

‘the gallows for tho murder of his para-

mour, Celia ‘Johnson. : This moruing,
early, ay largo crowd began pouring
into* town. Long before | tho hour
every ‘available
space: around tho: jail. wasa surging

‘}mass of humanity, mainly ondeavoring
| to catch’ some’ exprossions: from tho }.:
Ho had the benefit.}:.-

condemned man.
.of religious counsol all tho forenoon,

and was visited by tho clergy of tho:

town, both white und colored, who of-
fered all consolation to comfort in their
power. Rey.. Todd, ..of the «colored
fothodist church, ‘ddaninistered tho
rite of baptism about au hour before

“(opened the jail ‘doors and admitted all
entitled to admission or had invita-
Tho doomed man was in his cell
and had a noticoably calm lool’ whon
taken thonce.’ He ascended the. seaf-
‘fold with a firm and steady step: and
botrayed no fear or excitoment,: not
even’ when the hangman was -
limbs.

Before the black ‘cap. was

it-|-adjusted he was allowed to speak and

asked Sheriff Nelms not to cut him
down till-he was dead as he wanted to
go home, He. said he had made peace
Rev.
Todd offered a ferveut.and earnest
prayer and asong was sung in which
the - condemned man _ participated.
When asked ‘by~ ‘the Shoriff
was ready, -he _—

“yes :spring: the trap,” - and ~
12:35 the body of; John oliiona-wet
His neck -was
broken by the fall. Dy. Schrivers, pro-
nounced . life extinct. at 12:47; ° The
body was cut down at ono and siren fo
his friends for burials: }*-) =>"
4." 2 HISTORY OF THE CRIME,

“The murder of Celia Jebneos., by

. John Holiness was one, ofthe most

atrocious, dastardly and cold: blooded
committed in the history of this coun-
ty, and was tho outgrowth of a viloaud
beastly nature, and was. entirely with-
Dut provocation. “The victim of the

‘| murder was a young negro girl scarcely

15 years of age, and tho: fiendish. mur-
John
‘Holiness for somo’ months ‘had * been
onamored of this girl, and the intimacy

| had’ been of acriminal naturo.. 1fo had
pressed his suit. with matrimonial ‘in- |-

tentions, and tho friends of tho girl re-
volted: ugaiust a union on account

‘of the worthlessness‘of the wroteh. The |.

‘git ‘ouly---rocoived, his” attentions

through’the fear‘of him,'* Finding ‘that
honot wastlikely to win her'hatd in
marriago,ho was angered ogainsthor and
made threats against her life repeat-
edly. On the illfated morning in April
Alley. Davis’
plantation were chopping cotton Johu
came into the field, yun in hand, with
tho avowed purpose. of carrying into
execution his inuny previous threats.
The'girl pleaded most pitegusly for her

lifo, «but despite. her’" pleadings
this“\demon- bent ou the commis-
sion: of his = diabolical :- crime

turned a deaf ear to all her entreaties.
The quarrel provions to’ the killiug
jasted for about an hour,’ he all the
time cursing her in a most cruol man-
ner. She was in a crowd of hoe hands
and with the command for them to
“scatter,” he singled - her out and fired
the fatal shot, saying when he had fired
‘(with *an--oa th) “you shall marry no

othor man and nowl am‘ready to go to’

h—l with you.” ile mado no attempt

>| to get away and whon Mr. Davis arrived

arrest. ‘ He was consid-
the’ negrocs of the

did not resist.
ered = amoung

Fe _ HIS NAME, . e icigs

-Attwelve Sheriff Nelms

ure

>.) mer couple married this afternoon and
: ‘| the latter will marry to-morrow.

’

' Mr. Robert Pickett, or a long timo
koepor of the > county poor, has sold his
place toMr. $8. D. ulford and will
movo his fainily. near Meridian, Miss.
Mr. Pickett has been a good citizen of
Choctaw county ever since he came to
manhood, and will be regretfully
missed when heis gone. .

“Mr, W, L.Gray will buy, Mr. Pettons 3
"| placa hero. ;

Mr..W. P. Glover’ is on a ‘visit to
fr iends and relatives at Domopolis. |.

“The steam mill and gin of Mr, T. BR.
Bor ney, at Bergamot, was “burned rs
fow duys ago with about fiftcon bales
of cotton. - The. cotton belouged ' to
patrons of tho gin, no one losing more
than:two bales. Thero has beon four
steam gins. burned in this county since
the present 6 ginning season, began.

“GREENVILLE.

The ‘Judgments Ag vainat ‘Sites’ Powell—
The Titles at Miome.
Gr XEENVILLE, No vy. 23.—Tho two judge-
ments obtained’ against the sureties
on the bond of ox-Probate Judge J. L.
Powoll amounted to $10,158.14. The
criminal cases agaiust Judge Powoll
‘were set for hearing to-day but owing
to the sickness of Solicitor J. F. Stal-
lings,.the cases were | continued “until
to-morrow

“Yhe ' Butler Rifles ‘have returned
home safe, and report. a glorious time
in ‘ Columbus.> ‘The boys didn’t . win
any money at the drill ‘tis true, but
their heads areas high .as ever, and
they will bring back a _ prize the next
driJl they enter. [ad the Butlers
drilled as well in Columbus as they did
on their practice drills before they left
home, they would have had no troublo
whatever in walking off with second
prize: Thereis no kicking about the
decision of the Judges, and we all know
that we got just what we deserved. . as }

hay" H, A. Herbert is in tho Nes

GADSDEN.

A Murderer Caught with Bloodhounds,
Gapsprn, Ala, Nov. 23. — About
a -month ago thero was. a difli-
culty at Bessemer: between some: no-
groos over a game of cards.’ In the
meleo Brit Ferrell shot ‘and killed two
nogroes, knocked, a* policoman in the
hhoad,- and. then ‘escaped. Ivory: ef-
fort::-bas- been made — to. 'capi-
‘him, but all <in” vain, »,.un-
til yestorday morning, when Hoard ‘and
Smith ren bim him down and caught
him. with their pack of bloodhounds,
An ofiicercame up from Bessemer and
will take him back to the sceno of vhis
crime to-night. He wes -caught in the
mountains-about two miles from Gads-
den, When caught, he was well armed,
but, of course, resist: ince was useless;
and to-day the hounds, five of ths finest
in this country, were sold to thd coun-
ty authorities by Mourd and Smith for
350, which was | was vory cheap, indeod, .

inaiaseltaantss .

7 ‘HUNTER CONVICTED. mitnt ee
oe Notorious Gambles and Tough Cilizon
: ve. Downed nt Masts |:

bee

/(Binaingham. Ago-Horald.]

Soectets “Hunter was” ‘yostérduy eon,

victed of an. assault’ with intent to
murder... The circumstances of the at-
tack on young Waltors, arailroad man,
several months ago are familiar to
newspaper.readers of this city. Judge
Greeno has not yet passed soutence
but will do so one day this week.

* Marry llunter has ouly lived in Gir-
mingham about ono year, but his con-
duct has been such during that time
that he has gained no little notorioty,
Yo has been a gambior all his lito and
for anurmber of years was proprictor of
ono of tho most. flourishing houses iu
Montgomory.: After the Stato law
against keeping a house for gaming
purposes went into effoct he lett his
old homo and came to this city where
ho ‘was,. until his late inearcera-
tion “in the couuty jail, a sourco of
great‘trouble to tho. police. “Hunter's
first troubles here grew out* of
his -intimate: relations with a well
known woman of the town, and for au
assaultou her was put ou tho streets
for sometime. He was finally paid out

Incendiarism From the Chicago Tribune?
That Ought to Put lis Editor In. Jall—.
“He Wants the Nogroes to Fight, Burn’
Kill yaneibios and Mverything. mia

J, at .

fees

fe onricr-Journal, }

The ee Tribune seems ‘to ba. fee

sorely disappointed because the -ne--) % i aoe
sroes of tho South will not rise up and:
massacro the whites,and in the expres--
sion of its disappointment it publishes‘
an editorial, by the sido of whose in
famy that of the writings for which:
certain Anarchists wero hung in Chica
go a year ago ure mild. .

It makes publid tho following letter
tr om Senator Ingalls with reforence to-
Marrison’s Southern policy: “T7773 eee

* “ATcuisen, Kas, » Nov. 12 —Dear Sir, :
I have yours of the 9th.. Tho Republi-:,
can Administration will be delinquent’
if it does not insist upon’ the equality”
of all citizens, before the law, and de-~"
mand conclusive assurances of justice.’
The verdict cf Tucsday lust mean this
orit is destitute of significance end ou
triumph will bo empty and berren.

* Truly yours, Joun J. INGALLs.”"

Commenting on this, the = ‘Pribune
says:

“Every, - Republican’ will approve ,
heartily and without reserve the senti-%
ment expressed by’ Senator Ingalls.:
Undoubtedly President Harrison will
‘insist on the equelity of all citizous be-
fore the law and demand explicit * -and
conclusive assurances of justice.’
has done that as a private citizen.
difliculty is to seo what Gon, Harrison !
as Chief Magistrate candoto put an
eud to the system of organized political :
fraud in the Seuth. Gen. Graut had
to withdraw the.troops from the South *
and admit that he could not suppress
the evil...” Hayes abandoned wholly all’
coercive measures. Cartield and Ar:
thur made uo attempt to renew them. =
Confessedly as the luws stand now the!
President lacks the necessary power to
fain ae one t in cys ‘South froe and
air.

ae Rss ‘ My
tae: - 4 a

; ar eee aca 4m
Measures looking to the use of. mili-, :
tary power and the management of *
Southern elections by Federal officials”
can hardly bo passed, tho Tribune re-,
grets to think, because tho Republican “ Mes
majority in Conyress will be so small; » :
and laws aimed directly at the South-
ern States, and intended to-reduce
their representation, must be‘ drawn:
with groat care, it fears, in order to
avoid + the Constitu tional objections
stated in~' vecent: decisions of
the. Suprome Court—a court, by’: ‘the
way, which, even before: i
cessions of Democrats, hold. that the /
greater part of. Sumnor’s: last civil’!
rights bill was unconstitutional, “What ..o%2>
under thoruling of the Supreme Court, : wa
ean Cougress do?” disconsolately’ asks EER.
the Wribune. “If Senator Ingalls has”
some good aud effective plan to enforce,
equal ‘voting rlushtn, in the South, be
will deserve tho. lasting gratitude of .
all Republicans, aud .the Uribune will.’
endeavor toscethat the author ofa .
scheno.s0 valuable shall receive full:
popular appreciation. ‘Lhe fugalls doc-
trine is sound aud just, but how can it *’
be enforced?” ; “935
‘The prospect does seem very prom-
ising to it, and it wllows its rage at the -.
helplessnoss of the ‘party which -has °
Leen swearing to reconstruct the...
Southern States as soon as returned to’
power to discloso the diabolis sin of its »
malignity against the South i in the fol:.
lowing outburst. Fa
“Tho source of trouble is that thet :
blacks will not fyht for themselves -*
aud auy,coercive power to enforce their ,
rights must be used from the outside. :
Whito men or Indians sittated. asthe
Southorn negroes are would make the “f-
rivers of tho Southyun red before they :
would submit to the usurpations and *" :

166 SOUTHERN REPORTER, Vot. 12. (Ala.

defendant to answer that question was not
an admission or confession that he did the
shooting, but that it was a circumstance in
evidence in the case which might be con-
sidered by them; and thestate’s solicitor was
not allowed to argue it as a confession or
admission, but only asa circumstance, the
weight of which was dependent on the cir-
cumstances, and it was for the jury, in the
light of all the evidence, to determine what
weight they would give to it, if any. There
was noerror in this ruling of which the de-
fendant can complain. Clarke v. State, 87
Ala. 71, 6 South. Rep. 368; Cotton v. State,
87 Ala. 103, 6 South. Rep. 372.

5. The court was requested by defendant,
but refused, to charge the jury: “That a
‘reasonable doubt’ is defined to bea doubt for
which a reason could be given,” and defend-
ant excepted. This. charge was held to be
good in Cohen v. State, 50 Ala. 108, and held
to be incorrect in Ray v. State, in the same
volume, page 104. In People v. Guidici,
100 N. Y. 5u9, 3 N. E. Rep. 4938, the court
approved a charge on reasonable doubt which
defined it as “a doubt for which some good
reason, arising from the evidence, may be
given;” and in State v. Jefferson, (la.) 10
South. Rep. 200, the court sustained a charge
that reasonable doubt was “a serious, sensi-
bledoubt, such as you could give a good rea-
sonfor.” 8 Greenl. Ev. (4th Ed.) § 29, note.
We adhere to the rulings in Cohen’s Case,
and hold that the court erred in not giving
this charge. Jor the errors pointed out the
judgment of the court is reversed, and the
cause remanded.

(97 Ala, 715)

TRAWIHIDBIS, Sheriff, et al. ve HEARD.
(Supreme Court of Alabama. Jan. 12, 1893.)
SHERIFF—LIABILITY FOR TAKING DEFECTIVE
Bonpb.

In an action of detinue the sheriff seized
the property described in the writ, delivered it
to defendants, and took from them the bond re-

uired by statute, except that it did not contain

the condition “and pay all costs and damages
which may accrue from the detention thereof”
if defendants were cast. | Held, that, defend-
ants being cast, the sheriff was liable on his
bond to plaintiff for the costs and damages ac-
cruing from the detention of the property.

Appeal from circuit court, Buller county;
John P. Ifubbard, Judge.

Action by George P. Heard against I. Y.
Traweek, sheriff, and others, for breach of
his bond. Judgment for plaintiff. Defend-
ants appeal. <Aflirmed.

The plaintiff alleged the failure on the part
of Traweck, as sheriff of Butler county, to
faithfully discharge the duties of his office,
and assigns as the principal breach that he
failed to take a statutory replevy bond from
the defendants in the detinue suit brought by
the plaintiff in this action, George P. Heard,
against J. H. Hicks et al., as he was required
to do by the indorsement made on the sum-
mons and complaint by the clerk. ‘The de-

fendant demurred to the complaint, and most
of the grounds of his demurrer were sus-
tained. The practical effect of the rulings
on the detnurrer was that, under the com-
plaint, the only damage that could be recov-
ered was for the costs of the detinue suit.

J. F. Stallings, for appellants. J.C. Rich-
ardson, for appellee.

HARALSON, J. The indorsement of the
clerk on the summons in the case of George
P. Ueard (the plaintiff in this casein the court
below) v. J. A. Hicks et al. required the de-
fendant I. Y. Traweek, as sheriff of Butler
county, to take the property mentioned in the
complaint into his possession, unless the de-
fendant gave bond, payable to the plaintiff,
in double the amount of the value of the
property, wilh condition that, if the defend-
ants were casl in the suit, they would, with-
in JQ days thereafter, deliver the property to
the plaintiff, and pay all costs and damages
Which might accrue from the detention there-
of. The indorsement of the clerk followed,
strictly, the requirements of section 2717! of
the Code. The sheriff seized the property
mentioned in the complaint, except two steers,
and delivered it to the defendants, upon their
giving bond, which answered the mandate of
the clerk, as indorsed on the summons, and
as required by the statute, except that it did
not contain the condition “and pay all costs
and damages which may accrue from the de-
tention thereof.” This was a defect in the
bond, which deprived it of its statutory ca-
pacity. Such bonds, to be statutory, must
follow strictly the substance, and it would be
well, in practice, always the letter, of the
statute, and not contain conditions other or
fewer than the statute requires. Adler v.
Potter, 57 Ala.571. The sheriff was not au-
thorized to take any other than a statutory
bond, which, if the defendants were east in
the suit. and failed to comply with its condi-
tions, had the force and effect of a judgment,
on which execution might issue against all
the obligors therein, as provided by section
2721 otf the Code. The bond required by
statute to be taken in such cases is a pro-
tective measure to the plaintiff, to secure the
return to him of the property replevied, the
damages for its detention, and the costs of
the suit, in ease the defendant is cast. The

1Code 1886, § 2717, provides as follows: “When
a suitis brought for the recovery of personal chat-
tels in specie, if the plaintiff, his agent or attor-
ney, make aflidavit that the property sued for be-
longs to the plaintiff, and execute a bond in such
sum, and with such surety as may be approved by
the clerk, with condition that, ifthe plaintiff fail
in the suit, he will pay the defendant all such costs
and damages as he may sustain by the wrorgful
complaint, it is the duty of the clerk to indorse on
the summons that the sheriff is required to take
the property mentioned in the complaint into his
possession, unless the defendant give bond, pay-
able to the plaintiff, with sufticient surety, in
double the value of the property, with condition
that, if the defendant is cast in the suit, he will,
within thirty days thereafter, deliver the property
to the plaintiff, and pay all costs and damages
which may accrue from the detention thereof.”

fail
Stal
to {
on
‘|
sig)
bre:
Wel
bre:
and
the .
ent)
Upot
dict
plain
sho
dam
The
ching
dem
enti
are
chat
ruli:
At

adiiit
such
dice.
evider:
lerrod
Tales
the ss
takin:
ing i
Heys?
Pprusec
4.
tion a:
keep
that p
gun, 2
More
Tele, I
habit
ing al
sum pti
believe
INCompNY
defend:

App
Charl

Acti
Carhi
malich
for pla

The
now br
prosecy
peace, |
fendan|
iff hac
gather
threate:

, er”

Ala.) HODGE v. STATE. 165

of these charges, and the defendant duly ex-
cepted.

J. W. Posey, Sr., for appellant. Wm. L.
Martin, Atty. Gen., for the State.

NARALSON, J. 1. Rose Stanback wag
shot and killed in Brewton, by some un-
known person, about 8 or 9 o'clock on a Sun-
day evening, in February, 1892, Some buck.
shot were found to have entered a plank ina
house near where she was found, and about
25 steps away were afterwards discovered
tracks of a person who wore shoes, and be.
tween the tracks and house were found
“some colored ealico Scraps or rags, blackened
as if shot with powder, two in number, one
having severa! holes through it, and some
soft, thin paper.” These were produced,
and offered in evidence. The defendant
objected to the evidence, but the court ad-
mitted it, and he excepted. By itself, and
disconnected with something else, to make
it relevant, this evidence did not tend to
show that defendant, any more than any
other person, did the shooting, We infer,
however, that it was offered and admitted
with the expectation of its being made rele-
vant by other evidence to be offered in the
further progress of the trial. since We find
such evidence was offered, as follows: The
evidence shows that the sheriff and others,
Several days after the defendant haa been
arrested and confined in jail, went to the
house of defendant, and, looking through,
found a double barre] shotgun, put in x
place, as if to conceal it, with one barre]
empty, and the other loaded; that they drew
the load, and found it contained buckshot
and some dark calico rags and tissue paper
Wadding, similar in appearance to the rags
and paper picked up near the place of the
killing, which had been admitted in evidence,
und these, also, were offered and introduced
in evidence, against defendant’s objection
and exception. This evidence was Clearly
competent, and rendered that about the other
Tags and paper before introduced also rel-
Vint, as tending to connect the defendant
With the Shooting. Mattison V. State, 55
Ala, 224; Com. v. Webster, 52 Amer. Dee.
727. And each of these criminative circum-
stances becomes more pertinent, when it was
afterwards shown that the marshal of the
town, sheriff, and the clerk of the court, each
Known to the defendant, went together to
the jail, taking with them the gun whieh
had been found in defendant’s house, and
asked him if it was his gun, and he said it
was. The witnesses by whom this admission
Was shown testified that they made no threats
nor offered any inducements to defendant to
Procure said confession, and that it Was vol-
untary, The defendant's counsel objected to
thisevidence, on the ground that it was not
8 Voluntary confession, but it Was admitted,
and he excepted, There was no error in its
ulmission, 3 Brick. Dig. p. 285, §§ 552,
553

2. Any traces or marks at or near the
Scene of the crime, about the time of its
commission, indicative of the presence or
proximity of the accused, are always admis-
Sible as facts tending to connect the defend-
ant with its commission. The character of
footprints, found Where the crime is discoyv-
ered, leading to or from the place of the
crime, and their correspondence with the
fect of the accused, or with shoes worn by
him, or found in his possession, we have
held, are admissible in evidence to identify
him as the guilty agent, Young v. State,
68 Ala. 569. 74 Witness may be allowed to
State that he measured the tracks at the place
Where the crime Was cominitted, and coin.
pared them with tracks made by defendant
the next day, and they corresponded; but he
will not be allowed to say that a particular
shoe which he saw on defendant's foot would
make such a track, nor that “in hig judg-
ment it wags defendant’s track,” nor to give
his opinion on the subject at all. He must
State the facts of identilication, and it is for
the jury to fina, from the facts deposed to,
Whether they were defendant’s tracks or not.
Busby v. State, 77 Ala. 66; Riley y, State,
883 Ala. 193, 7 South. Kep. 149, It was erro-
neous for the court to wlow the evidence of
Witnesses to express their opinions “that the
tracks seen at or near the place of the killing
Were the same, and made by the same per-
Sons, as the others they occasionally Saw else-
Where;” and forthe sheriff to testify that the
track or impression made by the shoe taken
by him off of defendant's foot « Was the same
as the other tracks, and made and seen several
days previous, near the place of the killing
and other places in the town of Brewton.”

3. The court committed no error in allow-
ing the state to introduce evidence of the
pendency, in that court, of another indiet.
ment against defendant for another crime,
alleged to have been committed by him, in
Which the deceased Was a witness for the
state, against him, in connection with the
evidenve of threats made by defendant to
take the life of the deceased, because she was
a witness against him in said cause. Thig
evidence tended to show motive on the part
of defendant to get rid of deceased, Marler
Vv. State, 67 Alu. 56, 68 Ala. 580; Dunean y.
State, 88 Ala. 34, 7 South, Rep. 104,

4. Defendant, testifying in his own be-
half, failed to state or deny that he did or did
not do the shooting that killed deceased, al-
though he was asked directly if he did do it,
The solicitor for the state argued to the jury
that this failure of defendant to deny in his
testimony that he did the shooting was an
adimission that he did it. To this arguinent
the solicitor for the defendant objected, on
the ground that it Was-no admission against
him, and moved to exclude it, but the court
Overruled the objection and motion, and de-
fendant excepted. The bill of exceptions
States, in this immediate connection, that the
court then and there, and in its general
charge, instructed the Jury that the failure of

106 ALABAMA HISTORICAL QUARTERLY

in later years from some cause his life was revolutionized much
for the worse, much to the regret of all, for both he and the Coxes
were highly esteemed and prominent. He became a leader of
the Republicans of the section after the war, drank and was quar-
relsome. He fell into a cellar in Wetumpka that led to his death.
Above Buyckville among the good citizens were Mr. Collins and
sons, John and Andrew, Mr. Barnett and Mr. Bonner, William
Johnson, Flemming Goolsby, William Cardwell, George McEwen,
M. Watts with his sons, Thomas, Joe, and Robert, the Cardens
and Cardwells, with others not now remembered. The village
from an early period had a good school. Among the early teach-
ers were Conrad Wall, William Holtzclaw, Geo. FE. Brewer, and
Isaac Hall, who for more than half century taught about here.
Fred Oliver later brought the school to its best point. For sev-
eral years in the fifties there were more dancing parties than in
any other part of the county, and there was also a good deal of
drinking. On Saturdays it was not unusual for a number to be

SPRING ISSUE, 1942

per sack, cotton 9 cents. Coosa River lower than I have ever
it. Boats cannot get to Wetumpka. I sold 125 bushels of
tatoes at 80 and 90 cts. per bushel.” |

In December, 1859, he tells of eating fine watermelons
several different days, the last one mentioned being the 25th
December. These were raised and kept by himself.

Some springs he noted marking fifty and more lambs.
1861 he had I-44 head of sheep. In the fall he would fatten she
and beeves for market. In June he had twenty stands of your
bees, and twenty-seven of old ones.

On the 27th of July, the ladies of Buyckville organized
Aid Society to make clothing for the soldiers, and Spigener ga
them fifty pounds of wool.

—

—
found playing crack-loo in the store fronts, and yet the place was ro te BF

= He notes the hanging of Mack Holifield at Rockford, Mar
X &
not given to rowdyism. A few years later there were some re- :

- ww | 26th, 1862, for committing rape on Mrs. Barnes, near Buyckvill
on

ligious revivals, and dancing, drinking and gambling gave way. | ~

Joel Spigener was prominent in the county from the first. He
kept a regular diary, that if it could be found would be of great
value in preparing a work like this, for in the diary he noted not
only events personal to himself, but events in different parts of
the county that attracted attention at the time. The writer has
seen some fragments covering several years, and tried hard to
find it all. Some things from it will be of interest. In a letter to
Fred Lykes, dated April 26th, 1833, he tells of a cloudy rainy
spell lasting ten days, in which the sunthad been seen but once.
The spell had been introduced by a hail storm that destroyed the
crops. The Tallapoosa, Coosa, Alabama, and Tombigbee were
higher than had ever been known by the whites. He tells of a
terrific wind storm on Saturday, the 6th of April, that destroyed

houses, fences, k:lled stock, and crippled some of the people, but
none were killed.

Ina letter ta his son Joel, Mav 7th, 1855. he says, “There has
not been enouch rain in five weeks to bring up cotton. Corn

soorth $1.25 per Hushel flour $19 to $14 per barrel, salt $3 fo $4
*29QT

|
|

9% YdleW UC BUeQeTY

Ile mentions a large meeting held in Rockford, April 2n
1862, to aid in raising volunteers for the Confederate army.

He makes a note of the death of George Taylor at his hon
near Wetumpka, June 15th, 1862. Also that at Brocks’ Mill, ne
Brooksville, they made brandy during the war.

He refers to taking hides to the tan-yards of Albert Crum
ler, near Rockford, of Mr. Dennis, near Rogers Mill, and de
and sheep skins for dressing bv James Carroll, near Rockford.

He speaks of saving two watermelons from October, 1862, |
February 15th, 1863, and that thev were good at the latter dat

In February, 1863, he notes that cotton sold in New York fe
92 cts. per pound, and bacon at $1.50 in Mobile.

In 1863, he notes paying Charles Cox $2,700 for securing

coud SQle ete “ab ilar Hg agrctag,in the ery

en omer

16 SUPREME COURT [Dec. Term, OF ALABAMA. iy
[Holley v. The State. ] oe [Holley v. The State.]

~ the cases of Mitchell v. The State, 60 Ala. p. 28, and Ex parte
Brown, 65 Ala. p. 447. To these extracts, which need not be
here set out, exceptions were duly reserved.
__ The defendant then asked the court in writing to give the
following charges: (1) “The jury can not convict the
~- defendant of murder in the first degree, unless they firmly
_ believe from the evidence that he had murder in his heart
__when he fired the fatal shot.” (2) “If the jury believe from
~ the evidence that the defendant, at the time he fired the fatal
~ shot, honestly believed that it was necessary for him to shoot
~ the deceased, in order to protect his person or property, then
the jury can not legally convict him of murder in the first
degree.” (3) “That under the evidence in this case, the
deceased had no legal right to take the gun forcibly from the
~ defendant; that if he had done so, just before the fatal shot
~ was fired, when the evidence shows that he was contending
- for the gun, it would have been robbery; and if the defend-
~ant believed, when he fired the fatal shot, that the deceased
~ was about so to take the gun from him, then he had a right to
~ shoot, to prevent the robbery; and he can not be convicted of
murder in the first degree.” (4) “If the jury believe from
the evidence, that the defendant had no previous malice
against the deceased, then this is a circumstance which may
raise a reasonable doubt in the minds of the jury, taken in con-

‘Scip, leave the gun and go and get the money and settle the
matter.’ Defendant replied, ‘I won’t do it, and immediately
shot him. Luther threw his hands up to his side, and said, ‘ He
has killed me.’ Before the shooting, neither the witness nor
Luther said an angry word, or spoke in an angry manner or tone
to the defendant.” The defendant’s tone, however, when
spoken to about leaving the gun, was that of an angry man.
The testimony of this witness further tended to show that
there had been no quarrel between the parties; that the gun
was loaded with small shot; that Luther made no threat, nor
did he attempt to take the gun from the defendant ; and that
when defendant started off, immediately preceding the killing,
“he said he was going to get the money to pay George.”
During the examination of this witness, he was asked by the
solicitor for the State, “In what part of the body was Luther
Sealley shot.” The witness then produced a vest, which, he
testified, was the vest worn by Luther Sealley when he was
shot, and held it so the jury could see it, and pointed out to
them the hole therein, which, he said, was made by the shot.
The defendant objected to the witness being permitted to
exhibit the vest to the jury for said purpose; but the court
overruled his objection, and he excepted. It was also shown
on behalf of the State, that as soon as the gun fired, the
defendant walked off some little distance, and then began to

greseries
Oats tag Mie es Ope PRS

= y Ae

Thee RF oy

run, and “ran as far as he was seen.”

The only evidence offered on behalf of the defendant was a
showing for a continuance as to what one Wash Stewart
would testify, the contents of which were substantially as fol-
lows: That said witness was present at the killing and saw
the shooting; that at the time the shooting occurred, the
defendant had the butt of his gun under his arm; ‘that
deceased was advancing on defendant to take defendant’s gun
away from him, and the defendant was stepping backwards,
and trying to keep out of his reach; and that the gun was
fired accidentally, and was discharged without being elevated
or changed from its position; ” that the defendant was moving
that morning and carried his gun with him before he had any
controversy with any one; that the gun would go off “haltf-
cocked,” and could in that way be discharged ; that defendant
did not appear to be angry when the shooting occurred, and
seemed greatly alarmed after the fatal shot was fired ; and that
the defendant had no quarrel with the deceased, but was per-
fectly friendly with him. The bill of exceptions purports to
set ont all the evidence, the material portions of which are
here given.

The court, in the charge given ex mero motu, read, as a por-

tion of the charge, extracts from the opinions of this court in
VOL. LXXV.

nection with the other evidence in this case, as to whether the

killing was willful and intentional; and if the jury have a
doubt as to this matter, then they can not convict the defend-
ant of murder in the first degree.” (5) “If the jury believe
the evidence, they can not legally convict the defendant of
murder in the first degree.”

__A motion was made by the defendant in arrest of judgment,
the grounds of which are sufliciently indicated in the opinion.

Name of appellant’s counsel not disclosed by the record.

AL. C. Tomrxiys, Attorney-General, for the State.

BRICKELL, ©. J.—1. The objection taken to the indict-
ment can not be sustained. An indictment receives its legal
efficacy from the finding and return of the grand jury; and

_ the legal evidence of its verity is the return “a true Dill,”

apparent upon some part of it, bearing the signature
of the foreman. The signature of the solicitor, with
a designation of the circuit in which he is the law-officer of
the State, is proper, but it is not essential to its authentication
or sufficiency.— Ward v. State, 22 Ala. 16; Hurrall v. State,
26 Ala. 52. The present indictment bears the signature of

HOWARD. Ed, black,
McDANIEL, Joe, han

324

she sold out her boarding house business to
Mrs. W. Hi. Greene, who became Mrs. Miller’s
tenant in the house plaintiff had occupied,
and sold to her the goods described in the
complaint, partly for cash and partly on
credit, taking her notes for the deferred pay-
ments; that at the time of the sale there
was an oral agreement between them that
the title should remain in the plaintiff until
all the notes were paid, and that if any of
them were not paid at maturity she would
have the right to retake the property; that
the said property was levied on and taken
by the defendant, as alleged in the com-
plaint, and had not been returned to her, and
that it was worth $500; that when the levy
was made one of Mrs. Greene's notes for
822.50 was past due and unpaid; and that
the whole amount on said notes unpaid was
$142.50. Plaintiff denied ever having stat-
ed that she had not retained title to the
property. The deputy sheriff who made the
levy testified that before he levied on the
goods Mrs. Greene informed him that they
belonged to the plaintiff,

There was evidence on the part of the
defendant that, before the suit in which
the goods were levied upon was brought,
plaintiff had told two of Mrs. Miller’s agents
that she had not retained title to the goods;
that the agents told plaintiff they were go-
ing to attach the goods for Mrs. Miller's
rent, and she repeated that she had not re-
tained the title to the goods, and told them
to go ahead and attach. The only evidence
as to the value of the goods, except that of
the plaintiff, was that of the deputy sher-
iff who made the levy, to the effect that they
were very cheap, that some of the matting
was worn out and not worth taking up, that
the chairs and tables were broken and in
bad fix generally, and that he told the agent
of Mrs. Miller that they would not sell for
enough to pay for costs in the case, and
that of one Dolandson, a furniture dealer,
who examined the goods five months after
they were levied on, to the effect that they
were worth $150. The jury returned a ver-
dict for the plaintiff for $250. The court
declined to set aside the verdict on the mo-
tion of the defendant.

The first assignment of error is based on
the overruling of defendant’s objection to
plaintiff's testifying, in rebuttal, that about
$25 worth of the goods levied on had been
removed by some one while the goods were
in the possession of the sheriff under the
attachment. It is within the discretion of
the trial court to allow the introduction of
other testimony by a party after he has clos-
ed his case, and the exercise of this discre-
tion is irrevisable L. & N. R. R. Co. v.
Barker, 96 Ala. 455, 11 South. 453. The
objection being limited to the point that the
evidence was not in rebuttal, all other ob-
jections that might have been made are iim-

50 SOUTHERN REPORTER.

AAT ws :

y r

(Ala.

pliedly waived. 3 Brick. Dig. p. 444, § 574.
No error was committed in overruling the
objection.
The second ground in the assignment of er-
rors is based upon the refusal of the court
to give the general aflirmative charge for
the defendant, as requested by him in writ-
ing. In support of this it is urged that the
agreement claimed to have been made be-
tween the plaintiff and Mrs. Greene consti-
tuted a mortgage, and not a conditional
sale, and that the same was void because
not in writing. According to our decisions
this contention must be resolved against the
appellant. Piedmont, ete, Co. vy. Thomson-
Tiouston Motor Co. (Ala.) 12 South. 768, and
cases there cited. It will be borne in mind
that the statute requiring conditional sale
contracts to be recorded is not applicable
to the present case. Goodgame y. Sanders,
140 Ala. 247, 87 South. 200. There was a
conflict in the evidence as to whether or
not any agreement was made for the re-
tention of the title; and the circuit court
properly submitted this issue to the jury,
and committed no error in refusing the af-
firmative charge asked by the defendant.

The evidence does not warrant the assess-
ment of exemplary damages, and the incas-
ure of the plaintiff's damages is the amount
of the unpaid purchase money, with interest,
if that be less than the value of the property
wrongfully taken or converted; but, if such
amount and interest exceed the value of
the property, then the value of the property,
with interest, would afford the measure of
damages. The undisputed evidence shows
that the unpaid balance due the plaintiff
on her contract was not exceeding $142.50.
This, with interest, then, fixed the measure
of plaintiff's damages, provided the jury
should find that the property reached that
mark in value. It follows that the damages
assessed are excessive, and that the court
erred in not setting aside the verdict on this
ground. 4 Mayfield’s Dig. p. 765, § 427; Id.
p. 764, § 412; Morton y. Irrick, 87 Ga. 230, 18
S. E. 463; Bradley vy. Burkett, 82 Ga. 255, 11
S. I. 492; Johnson vy. Whittemore, 27 Mich.
468; Rose v. Story, 1 Pa. 190, 44 Am. Dee.
121; Woods v. Nichols, 21 R. 1. 537, 40 Atl.
548, 48 L. R. A. 778.

Reversed and remanded,

DOWDELL, C. J., and SIMPSON, AN-
DERSON, MAYFIELD, and SAYRE, JJ,
concur,

(162 Ala. 25)
McDANIFELS v. STATE.

(Supreme Court of Alabama. June 30, 1909.)

1. Criminau Law (§ 1150*)—CHANGE oF VEN:
UE—REVIEW.
Denial of accused’s application for a change

of venue will not be reversed, unless the Su-

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

hy. 1910, a vai ilo tae

OR Ie nk tag

tes
re;
Will
that
thi
aCoG
not |
fine]
[ 1.

La Ww

Aj
B. MM
Jor
in 1]
he a;

Vhe
Opin:
noted
fused
Chars
able
evidey,:
testi,
defend
that 1)
State |.
Taylor
coms lic
W. TD:
they ha
falsity
the ak

jury th,
that th.
rate tive
tends to
mission

Rinna \
lieve the
true, thy,
Suilty.”

Charle
appellan;,
and Thon
Le
*For other

§ 574.

ie the

of er-
court
‘eo for
writ-
at the
le ‘De-
consti-
iiional
eause
‘sions
st the
mson-
*, and
mind
} sale
‘icable
nders,
was a
‘cr oor
ne re
court
jury,
ie at
ne.
iSSCSS=
Wease
nount
| (epest
a
s
ue of
sperty,
ive of
shows
aintit
iG ware te
asure
- jury
i that
HuIeCSs
court
i this
Pe Ed.
Bao, -13
ms, 11
Veoh.
a Ts

» ACL

7 EN ANE A ANUBIS sah NE ease aS

BS OME REGIA RE ERLE AP REI DV BB Re ips ee

REESE SEO LSE TSAR SE Ria es Oi ese a

Fae ee

eae

Mecrepenssteatereee

RR SARS

Ala.) MODANIELS y, STATE, 325

preme Court can clearly see that the determina- McCLELLAN,
tlon was erroneous,

(Ed. Note.—For other cases, see Criminal
Law, Cent. Dig. § 3044; Dec, Dig. § 1150.*]

J. The appellant stands
condemned to suffer death for the murder
of Robert Ww. Drake. Preliminary to the
trial below the defendant moved for a change
2. CRIMINAL Law (8 511*) — Testimony oF |} of venue. The court denied the motion, and

AccompLice—Corrororation, . this action of the court is the first question
i qn ccomplice testified to a conspiracy ro presented for review here. This court, in
kill deceased, describing the circumstances and |

the method followed, Stating that defendant was | Hawes’ Case, 88 Ala. 37, 7 South. 302, an-

a party to the conspiracy and watched outside ; HOunced the rule that the action of a trial
while the murder was being committed, Held. | court in refusing an application for a change
that evidence of another witness that, on the

I y | , rf _— *
Monday night before decedent was killed, she | Of venue bile not be reversed unless this
heard the accomplice and others connected with | Court can “see, and See clearly, that its ac-

ge conspiracy, including defendant, talking in | tion wag wrong”; that the presumption pre-
ter house about a plot to kill deceased, was suf- vails that the ruling w; : : “ror
i , bed i ‘ iS free from erro)
ficient corroboration, under Code, § 7897, for- reir ,

bidding a conviction on the uncorroborated tes- | UNtil error {is affirmatively shown. In How-

timony of an accomplice, ard’s Case (delivered at this term) 50 South.
[Ed. Note—Ior other cases, see Criminal] }954, the Hawes Case, in this particular was
Law, Cent. Dig. § 1128; Dee. Dig. § 511.*] followed. After a careful review of the evi-

8. CRIMINAL Law (§ 780*) INSTRUCTIONS dence offered on the hearing of the applica-
+ URIMI, 4 _ s q _ . . . ; “$
ACCOMPLICE’S T£STIMONY—Corroporation, | tion for change of venue, and with due re-

_Where, in a prosecution for homicide, the gard for the rule Stated, we are not con-
robamony of W. was the only evidence to’ cor vinced that error was committed in the re-
roborate an accomplice who connected defendant

With the offense, it was error to refuse to charge | fusal of the application,
that if the jury believed from the evidence that The important question presented by the

the only evidence tending to corroborate the record and argued by counsel for appellant
accomplice was W.’s testimony, and if they did

; : raises for our revi w the inquiry whether
hot believe her testimony to be true, they must | a ° c © ert

find defendant not guilty. the testimony of the accomplice, Charlie
(Ed. Note.—For other cases, sce Criminal Taylor, implicating the defendant, was snf-
Law, Cent. Dig. § 1862; Dee, Dig. § 780.*] ficiently corroborated to render the submis-

sion of guilt vel non of the defendant to the

Appeal from Circuit Court, Hale County; jury. Accepting appellant's theory that the
B. M. Miller, Judge. witness Emma Williams’ testimony was all
Joe McDaniels Was convicted of murder | the evidence offered assuming to afford the
In the first degree, sentenced to death, and necessary corroborating testimony of that
he appeals. Reversed and remanded, given by Taylor, we entertain the opinion

nm ; that Williams’ testimony sufliced for the pur-
The facts are Sufliciently stated in the . tn wot me
opinion of the court. The following charges oP one ee ie We will briefly set
hoted in the opinion, amon others, were re- eo rine
fused to the defendant : 8 “(4) The court Taylor testified that he, Shad W illinms, Rd
charges the jury that. if they have a reason- Howard, and defendant concocted, after dis-
able doubt as to the truth or falsity of the fiat ae tre mention ot Me dieu “nee
evidence of the woman, Emma Williams, who rea 4 hie "Foon, bon poten ariel with a
testified in’ this case, they must acquit the raha ms oe . . ee
defendant (5) The court charges the jury plece of iron; that, finding Mr. Drake asleep,
that the ‘boly riisiens yee Me d by the|it was then arranged for the defendant to
hate ron pee: Prat te tection ne pa eoera “watch” outside, which defendant did: that
Taylor ty éyidienes tendine £0 ae the fin Williams struck Mr. Drake on the head with
. yee eh aig “7 7 | the piece of iron, killing him; that one of
XC, Denkp At Shc nt Atoedto A | them secured from his trousers the store
perme . ; ee (which was nearby) keys; that the four
they have a reasonable doubt of the truth or ea ; nc “VAP
falsity of that testimony they must acquit | “ent there, robbed ope OF “ higegd aFan one
the defendant (©) The come tharees th and attempted to open the other cash drawer
an tae if they believe from the svidones and the iron safe; that they took an inflam-
that the only evidence tending to corrobo- a oll Out of the Brock, poured oe
rite the testimony of Charlie Taylor that the building, and set are fo it; that some o
tends lo connect the defendant with the com- | ae rermined thie gen ee pe
tilssion of the offense is the testimony of | “7© ‘rou: . ‘. ere
Emma Williams and if the jury do not be- | With it, and, placing the trousers beneath the
Nahas ee body of the dead nian, fire was set to the
we » >t iv 7 |
va they ane as : ae be | trousers. These are some only of the details
uilty » 7 RMS OG '@ Gefendan Not of the tragedy. Emma Williams’ testimony,
hah las presently important, was, the record
Charles 1, Waller and HH. G. Benners, for | shows, as follows: “On Monday night be-
appellant. Alexander M. Garber, Atty, Gen., fore Mr. Drake wag killed, I heard Shad Wil-
and Thomas D. Sanford, for the State. ‘liams, Ed I) oward, and Charlie Taylor tall-

*For other cases See Same topic and Section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

TIL FPVtrweesres

FLAW...

Put te me tee

wi
on

‘i
®
*

URivrnoie:

E> Sure he

326

ing at my house. Q. Did you hear any talk
between them about a plot to kill Mr. Drake?
A. Yes, sir. Q. Who was it you heard talk-
ing? A. Shad Williams, Joe McDaniel, and
Ed Woward. Q. What did they say? A.
Shad Williams say they was going to kill
Ma. Drake to get them some money.”

In one view, clearly open to adoption, both
by the court as a preliminary matter to de-
termine whether it corroborated Taylor’s
testimony and by the jury upon submission
to them, the witness aflirmatively stated that
defendant was one of the three, with Shad
Williams and Ed Iloward, she heard talking
about a plot to kill Mr. Drake. In this par-
ticular Taylor’s testimony, detailing the plot
to kill Mr. Drake, finds, if credited, direct
and material support. After responding to
the question as last indicated, the witness
said that Williams said “they was going to
kill Mr. Drake.’ (Italics supplied.) The
they referred to in the answer of the witness
obviously had reference to the parties said
to have been then present, and defendant
was one of them. These considerations ap-
pear conclusive to us against the insistence
for appellant that the testimony of the ac-
complice was uncorroborated. The affirma-
tive charge, requested by defendant, was,
hence, properly refused.

The defendant requested, and was refus-
ed, several charges postulating an acquittal
of the defendant if the jury did not credit
the testimony of the sole witness whose state-
ments tended to corroborate the testimony of
Charlie Taylor, the confessing accomplice.
The rule sought to be announced in these
charges should have been applied to the case.
The statute (Code 1907, § 7897) forbids a con-
viction on the testimony of an accomplice,
unless corroborated as the statute prescribes.
In this case the corroboration (if offer-
ed) depended wholly upon the testimony of
Emma Williams. Disbelief of her testimo-
ny necessarily forbade, under the letter of
the statute, a conviction of this defendant.

We have numbered the refused charges for
convenience. <All of the Justices concur in
the conclusion that the court erred in refus-
ing charge 6. Justices ANDIEERSON and
DENSON entertain the opinion that the court
also erred in refusing charges 4 and 5. Jus-
tice SAYRE holds that charges 4 and 6
should have been given, but that charge 5
might properly have been given, though the
court did not err in refusing it, because it
placed the burden on the court to declare
what the evidence was. The principles an-
nounced in Segars’ Case, 86 Ala. 59. 5 South.
558, and Johnson’s Case, are applicable to
these charges. Charge 6 hypothesized the
mere belief by the jury of the testimony of
Emma Williams, whereas the essential, un-
der the statute, to a conviction, where the
corroboration of the accomplice’s testimony
is offered by a single witness, is that such

50 SOUTHERN REPORTER.

tle ey:

(Ala.

witness’ testimony shall be believed beyond a
reasonable doubt. Charge 6 did not so in-
tend; but its failure in that respect was
favorable to the prosecution.

Tor the error in refusing charge 6, the
judgment is reversed, and the cause is re-
manded.

teversed and remanded. All the Justices
concur.

SMITH v. STATE.
(Supreme Court of Alabama. June 30, 1909.)
CRIMINAL Law (§ 1182*)—APpPpEAL—DISPOsI-
TION OF CASE,

_.Where the record proper is regular and
valid, and shows all things necessary to support
a judgment of conviction and sentence, and there
is no bill of exceptions, the judgment and sen-
tence will be aflirmed.

[Ed. Note—For other cases,
Law, Cent. Dig. §§ 3203-8214;
1182.*]

Appea: from Law and Equity Court, Lee
County; Albert I. Barnett, Judge.

John Henry Smith was convicted of crime,
and appeals. Aflirmed.

Alexander M. Garber, Atty. Gen., for the
State.

see Criminal
Dec. Dig. §

MAYFIELD, J. The record proper ap-
pears to be both regular and valid. It shows
all things necessary to support the judgment
of conviction and death sentence. ‘There is
no bill of exceptions. Finding no error, the
judgment and sentence must be affirmed.

Affirmed.

DOWDELL, C. J., and SIMPSON and

DENSON, JJ., concur.

(162 Ala. 52)
PHILLIPS v. STATE.

(Supreme Court of Alabama. June 30, 1909.)

1. OrtmMInat LAw (§ 761*)—Wrrvrssns—RBrag

—INSTRUCTIONS.

Request to charge that certain facts might
be looked to, to show prosecutor’s biased feci-
ings in giving his testimony against accused, in-
stead of to determine whether prosecutor’s feel-
ings were biased against defendant, was prop-
erly refused.

[IEd. Note-——For other cases, see Criminal
Law, Cent. Dig. §§ 1731, 1738, 1754-1764, 1771;
Dee. Dig. § 761.*]

2. CRIMINAL Law (§ 807") — INSFRUCTIONS —

ARGUMENTATIVE CHARGES.

An instruction that the jury must try ac-
cused on the evidence, that public opinion should
not be considered, and that each member of the
jury must from the evidence believe accused
guilty beyond a reasonable doubt, before a con-
viction would be authorized, was properly re-
fused as argumentative.

[id. Note—Tor other cases, see Criminal
Law, Cent. Dig. § 1960; Dec. Dig. § 807.*]

3. CRIMINAL Law (§ 814*) — INSTRUCTIONS —
ABSTRACT INSTRUCTIONS.
A charge, not supported by any evidence,
is properly refused.
[Iexd. Note.—Ifor other cases, see Criminal
Taw, Dee. Dig. § 814.*]

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

RE at

PRM Ae RR

Aan test Le bgty

PEGA RL Le

con:
of t
him
you
of i!
aor
guili
I ch
each
vines
defo
dene
fend:
there
the
doubt
of th
tion
then

——_—_..

"For ot

A new one —

Sam Howell, a negro, legally hanged at
Talladega. Alabama, on 9-20-/860 for
being the ringleader of a slave conspiracy .

Daily Chronicle & Sentinel (August Ga) q[ab|oo i

958 50 SOUTHERN REPORTER. (Ala

enters po. se., and prays to God to send him’

a good deliverance.”

With us, however, it is nothing more than
calling the accused to the bar of the court,
and reading or explaining the indictment to
him, and demanding his plea. Its only pur-
pose is to obtain from the accused his an-
swer or plea to the indictment. Crain vy.
United States, 162 U. S. 625, 16 Sup. Ct.
952, 40 L. Ed. 1007; Early v. State, 1 Tex.
App. 248, 28 Am. Rep. 409. Our statute (sec-
tion 7565 of the Code of 1907) directs that
if the defendant on arraignment refuses or
neglects to plead, or stands mute, the court
must cause the plea of not guilty to be en-
tered for him. Under our practice and stat-
utes, one charged of a capital offense is re-
quired to be arraigned, and his plea to be
interposed, at least one entire day before the
day of the trial, so that it may be determin-
ed whether or not he is entitled to a special
venire for his trial. If, on arraignment,
he pleads “guilty,” he is not entitled to the
special venire; if he pleads “not guilty,” he
is, and this special venire, together with a
copy of the indictment, must be served up-
on him or upon his counsel one entire day
before the trial. Code, §§ 7566, 7840.

The record proper in this case afiirmative-
ly shows this was done; but it is insisted
that the indictment was not read to the ac-
cused at the time the trial was begun, that
no plea was then interposed by the defend-
ant, and no issue was joined thereon. It is
not necessary that there should be two ar-
raigninents for one trial. The record aflirm-
atively shows all that is necessary as to
the arraignment before drawing the special
venire or the trial.

Finding no error, the judgment must be
affirmed.

Affirmed.

DOWDELL, C. J., and SIMPSON and
DENSON, JJ., concur.

In Response to the Application for a Re-
hearing in This Case.

PER CURIAM. There is evidence in this
record, tending to connect the defendant
with the commission of the crime, other
than that of the witnesses hypothesized in
the charges complained of, which was not
the fact in the record of McDaniel’s Case,
50 South. 324, which is referred to and in-
sisted upon by counsel.

—-

(168 Ala. 518)

SUPREME LODGE KNIGHTS AND
LADIES OF HONOR y. BAKER.

(Supreme Court of Alabama. Dec. 16, 1909.)

1. Triav (§ 46*)—EVIpDENCE—RELEVANCY AND
MATERIALITY.

The question in an action on a life policy,

in which the defenses were false statements of

insured as to his occupation and as to his use
of stimulants, if witness knew whether I. shot
another person at the time, was subject to the
objection of calling for irrelevant and _ im
material evidence; no statement being made as
to what was expected to be proved thereby.

{Icd. Note—For other cases, see Trial, Cent.
Dig. § 116; Dec. Dig. § 46.*]

2. TRIAL (§ 46*)—RECEPTION OF [EXVIDENCE—
OFFER.

Objection is properly sustained to a ques:
tion; it not being clear that the answer called
for would be relevant to any issue, and the
party failing to state what answer he expected
to elicit.

[lad. Note.—For other cases, see Trial, Cent
Dig. § 116; Dec. Dig. § 46.*]

8. INSURANCE (§ 818*)—BENEFIT CERTIFICATE
—ACTION—HEVIDENCE—RELEVANCY.

Witness in an action on a benefit certificate,
in which the defense was a misstatement by
insured as to his occupation and as to his use
of stimulants, having testified that he could not
recall whether deceased quit the railroad or
was discharged, “My best recollection is that
his services were unsatisfactory,” the latter part
was properly excluded, on objection, as having
no bearing on any issue.

[Iad. Note.—For other cases, see Insurance,
Cent. Dig. § 2004; Dee. Dig. § 818.*]

4. INSURANCE (§ 818*)—BENEFIT CERTIFICATE
—IFALSE WARRANTIES—ISVIDENCE.

The question, to the doctor who examined
one for insurance, whether there was any indica-
tion of his habitual use of alcoholic or other
stimulants, was proper in an action on the bene-
{fit certificate, in which a defense was that in-
sured falsely answered the question as to wheth-
er he used such stimulants.

[Ed. Note.—For other cases, see Insurance,
Cent. Dig. § 2004; Dec. Dig. § 818.*]

5. APPEAL AND Error (§ 1058*)—HARMLESS
ERROR—EXCLUSION OF WVIDENCE.

Any error in sustaining objections to ques-
tions was harmless; they having been answered
in full, and the answers not having been ruled
out.

[Ed. Note.—For other cases, see Appeal and
Error, Cent. Dig. §§ 4195, 4200-4206; Dec. Dig.
§ 1058.*]

6. IEXVIDENCE (§ 322*) — QUESTIONS CALLING
FOR HEARSAY.

The question, “Did you ever hear of his he-
ing a railroad clerk?’ is objectionable as call-
ing for hearsay evidence.

[Ed. Note.—Iror other cases, see Evidence,
Cent. Dig. §§ 1203-1213; Dec. Dig. § 322.*]

J. WITNESSES (§ 248*)—EXAMINATION—IRRE-
SPONSIVE ANSWER.

The answer, to the question whether or not
witness knew a certain person was a_profes-
sional gambler, that he was not a straight hand
to gamble, was irresponsive.

[Iad. Note.—For other cases, see Witnesses,
Cent. Dig. §§ 861-863; Dee. Dig. § 248.*]

8. INSURANCE (§ 818*)—LBENEFIT CERTIFICATE
—ACTION—INVIDENCE.

Whether insured gambled straight or crook-
ed was irrelevant, in an action on a benefit cer-
tifieate, in which the defense was that the oc-
cupation of insured was that of a gambler and
loafer, while he had stated in his application
that it was that of a railroad clerk.

[Iad. Note.—Ifor other cases, see Insurance,
Cent. Dig. § 2004; Dee. Dig. § 818.*]

9. EvipENcE (§ 129*)—SrmiLar Facts.
One cannot prove one vice or moral derclic-
tion as a circumstance tending to show the

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

goad ats

‘

Uabile, “Alabatay,’on:'Sent.

COLD BLOODED MURDER
<0# A COLORED WOMAN

tee
Lad.
i

“3. WH,LIAMS TO DEATH, | ;

‘after, His Capture by Officers Rodgers
and McCall} Hydsen Admitted
the Jfilling, Saying he Stabhed
*, the Woman Fiye or
Sane Six. Times...

¥ anh +>

7
-
k

‘Last. night at. about 11- o'clock: Ea-
ward "Hudson, ‘colored, stabbed and
kjljed.a ¢olared woman named Lavina
, Williams... The deed was done at the
home ‘of “Henrietta Smith, No. 303
North Royal street... Hudson admitted
the killing, and said that he was glad
he ,had done it, saying that the only
.peace for him wasn the death ‘of the

woman? er is rate :
'*Hudson said that he came in from
down town and found the woman con-
versing with some one in the house.
He gat’ mad, he said, and drew out his
pocket, knife and stabhed her to death.
it is considered by policemen .and
others who learned the facts to have
been, the : most. cold-blooded murder
that. was ever committed in Mobile,
and . the exultation of the man over ; the
deed was horrifying.
Henrietta ‘Smith sald that she was
sick and in bed, She heard Hudson
come in, and heard the other parties
leave the room. There was silence for
a few moments, neither Hudson or the
woman speaking, , Then she heard
Hudson’ calling the Williams woman
pet names and ‘speaking to her in en-
dearing terms. Levi Collins, a colored
man who lives-in the house, came in,
and she heard him ask what was the
matter --with ‘Lavina, “and shey then
heard him say he thought.the woman
was dying, Henrietta.then’ got up and

EDWARD HUDSON §TABS LAVINA

| De Non-Irritating
/Cathartic

Easy to take, easy to operate=
HTood’s Pills
— =e

Europe 1,961,000, against 1,970,000 last
year and 2,2271,000 year .before last;
in Egypt

year and

240,000 year before last; in

and 563,000 year before last; and in
the United States 953,000, against
1,063,000 last. year and 1,
before last,

(X)f Corrected exclusive of Galves-
tan minus-stock correction ‘week 571.

(XX) Cerrected. exclusive of Gal-
veston minus stock correcteg ta date
58,993, fas : P :

. TAKING OF AMERICAN.
New Orleans, March 4.—Secretary

Hester gives the taking of American
cotton by spinners throughout ° the
world as follows, in round numbers:

This week 224,000 this year, against

273,000 last year and 267,000 year be-

fore last. “ gees
Total since September 1, this year

6,798,000, against 7,008,000 last . year,
and 6,559,000 the year before, ‘

Of this northern spinners’ and
Canada took 1,733,000° bales ‘this year,
against 1,643,000 last. year and 1,692,-
000 the year before; southern spin-
ners 1,281,000, against 1,241,000 last
year, and 1,108,000 the year before;
and foreign spinners 3,784,000, against
4,124,000 last year, and 3,749,000 the
year before. 4 pres oa he

_ THE CROP MOVEMENT.

New Orleans, March 4.—Secretary Hes-
ter’s weekly New Orleans Cotton Ex-
change statement, issued hefore the'close
of business to-day,-shows a decrease in
the movement into~sight compared with

284,000, against 169,000 last :

India 375,000, against 615,000 last year |:

248,000, year

NORTH ALABAMIANS
LIKE COLONEL RUSSELL:

AS STRONG A CANDIDATE THERE AS |
_ HE 18 AT HOME.

Parties of Distinguished Visitors Enter-
tained by the Colonel Yesterday at
Luncheon Agree That His Candi- :
‘dacy for Delegate-at-Large
Meets Popular Approval.
a . , *

Mobile is noted for its hospitality, and ;
one of the most conspicuous social meet-
ings which our citizens have had recently
was that of yesterday, when a party of
North Alabamians were: entertained at!
lunch by Han. E. L. Rusge]l. The party
wag composed of Hon, C, B, Lawrence,
capitalist, of New York; Hon, A, C. Hart-
shorne, attorney, of New Jersey; Hon. F
M. ‘Abbott, of Selma, president of © the
Birmingham, Ohio and Southwestern Rail-
way; Hon. W._A. Bibb, president of the
Morgan County National Bank; Hon.
George H,’ Parkes, a member of the legis-
lature and banker of Cullman,.Ala.; Colo-
nel Richard H, Adams,‘ superintendent
of water works of Decatur, and Hon. John
C, Eyster, attorney, of New Decatur, be~
sides Hon. R. H. Clarke. Mr. F. 0. Hoff-
man, and Hon, R::¥, Taylor, ef Mobile.
Like all of Colonel Russell’s entertain-
ments, the affair was most enjoyable to
those fortunate enough to be present,

While the discussien and talks -drifted
upon politics, it was found that Colonel
Russell is a popular eandidate from a
North Alabama Standpoint for delegate-
at-large to the National Democrati¢ con-
vention, Qne speaker said that the colo-
nel would “receive the same, support in
his county that he would receive in hig
home county, Mobile. Amid the enthus!r
asm it, developed that Hon. R..H. Clarke
held a warm place in the hearts of many
Alabamians for his fight for Democracy

Edwin Wooley was re:fas
sald if’ Thatcher persi hal
dacy for the senate «@%,
in harmony with the wig
the logical outcome.w
oft. from the church.

the defence and questio Mis
ington. _ ,

Mr. Worthington call
apparent inconsistency’
authority of more
receive revelations,

Mr. Smith said that
could receive revelation
church,”” though every
ehureh could ‘receive rf
personal guidance, proWee
worthy to receive inspir fs

The last revelation
ing to Mr. Smith, was

apostolate. ,
“That is the only og
years?"

other revelations?”
ington.
“It is an oversight, @
I believe from: what §?
should be, and I certags
influence to have it ins#*P
edition published,” ans¥
“Do you nmend the §
out that certain poin
taken literally?” aske
ton. » \ :
“No, we.do not ing,
King James yersion of}j!
the ansaver. , :
“Do you contend t¥
be amended?" asked MR?
opposing counsel. ,
“Well, I do believe {
things in the Bible
ton was saying, when §
terrupted hastily with ®
that such discussion he
the hearing, a
Mr. Smith testified th;

ing actual polygamy §
passed by the Utah tof
ture, which was oyerw
posed of Mormons ani§»
stitutional convention —
posed of a Jarge major

so that the existing laf
legislating against 2
reilly were the resyltt-
of Mormons themselves

the seven days ending this date last year | some years ago and he was still a factor
in rgund figures of 40,000, a decrease un; in Alabama politics. ee
der the same days year’ before last of : ;

get gee: ey gees over the same time THE IN TE RES l ..
~. WAS UNABATED |

For the four days of March ‘the tojais

went intg the room, but when she got,
thera the woman was dead. rie
Hudson was kept in the’ house by
Henrietta‘ Smith while, officers were
‘ealled by telephone, he not. knowing
\ -'that the Police ‘were coming. Pollce;
{ men’ Rodgers and McCall hastened to
the.scene. As they entered the door
of: the house Hudson saw them and

show a decrease under laxt year of 24,000,
a decrease under the sabe period year
before last of 4,000, and an increase, over
the same time in 1901 of. 14,009,

1
i
j

‘

| _Lacyerdiot that the woman. came to har

ran *out of the back door. Levi Col-

‘.Te a reporter Hudson said (and he
was standing Jooking downonthe dead
wajnan's face whilg he spoke): “Yes,
air, ‘I: killed per, , I stood here. with
my‘arms around her’ and opened my
knife and stahhed her in the back. I
stabhed her five or six times. I felt

moments after the capture and took
charge, ealling Caroner Hirshfield by
telephone.. The man was put in the
patrol wagon and taken to'the station
and.Jocked up, ‘He gaye his age as
twenty-eight years, and his residence
No. 808: East String street, Pensacola.
“Corgner Hirshfield had the’ body of
thé “woman. removed to the morgue,
“where he empanelled a jury. After
hearing theevidencethe jury returned

Bor the luy days of the season that have

the past week’ has been 137,179 bales,
against 176,989, for the seven days ending
this date* last year, 156,12L° year before
last, and 123,538 same time in 1901; and for
the four days of March it has been 86,344,
against 109,853 last year, 90,491 year before
Jast, and 72,794 same time in 1901../ |

im 1901.

Overland across. the Mississippi, Ohio
and. Potemac rivers to Northern’ mijls
and Canada 756,212, against 865,599 last
year, 916,619 year hefore last, and 903,405
same! time In 1901. 7
Interlor stocks jn excess of those held
at the close of the commercial year 296,115,
against 225,742 last year, 325,013 year be-
fore last, and 577,514 same time in 1901.
Southern mill takings’ 1,244,000, against

“death. by, knife wounds inflicted by
Edward’. Hudson, and -recommended
that'he be held on a Charge of murder.
The:man’s knife was exhibited to the

covered with: blood ‘to the hilt.

j“'WORLD'S' VISIBLE SUPPLY.

New: ‘Orleans, March 4,—Secrétary,.
Hester's ‘statement of, tha world’s
visible supply of cotton, made up from
special cable and telegraphic advices

week ‘just. closed of 116,990, against a
decrease ‘of (x) 45,828 last. yenr and a
dearease .of 67,289 year before last.

“The total visible is 3,586,607, against

LAA RAL lask yeah, POM -yeurpeturetnst
and §&)§,892 same. time in 1901. ° .

These make the total movement for the
186 days of the season from September. fst
to date 8,773,208, against 8,939,213 last yenr,

Foreign exports for the week have heen
101.301, against 161,434 last year, making
the total thus far for the season 4,994,514,
against 5,213,051 last year, a decrease of
219,437. ' : . —_
Northern mill takings and Canada dur-
ing the past seven days show an increasa

creased 89,830. The total takings of Amer-
{caf mills, North, South and Canada,
thus far for the season have been 3,014,480.
against 2,884,788 last year. These include

3,663,597 Jast week, (xx) 3,816,702 last

tonne ‘eh ce

(Continued From Page . One.)

made such a “hubbub” had been a: decla-
ration merely that Apostle Grant had twa
wives. That declaration, the witness said,
had been made by Grant in a private
speech and he had not taught the practice
of the system,” ; .
“What would you do if

her dying, and I held her until I had| The moyement since. September Ist of “shies. aarvinaen” we pete icles a numerous family, and
stabbed her enough, and then I laid- shows: tacked?” Sénatn~ MaCém . ie (Ate the prey of a preying
herdown -on- the floor...I did-it-be-/ Reveints-at- all United States ports | “wre would defend it,” sald Mr amitn, | 8% continuously spying
cause she loved another mah,” : 6,476,531, agalnst §,626,518 last year, 6,599,748 It was noon Sphien thi i es mit : relations. I thought if +
Lieutenant Rondeau appeared a few | year before last, and 6,922,902 same time = PONE was reach- passed, it would be a hb

€¢ and as none of the senators desired to
ask anY more questions of the witness.
Mr. Taylor was instructed to Present the
various documents and books which he
desired to offer as exhibits,

Ho sald it would take him halt
to read them and
ed until 3 p. m,

an hour

i
the committee adjourn,

°
_

plaint of husband or
.was yetoed, -

favor of the bill, and we

ter with me.
fortunate—or otherwise

as well as a relief to the:
position,
tinual ‘spotting’ of our
I spoke to a few friends
but to none of the memly

questions

THE AFTERNUON SESSION,
When the afternoon session of the came
“mittee Opened, Mr. Taylor read from the’
book, “Dootrine and Covenanty,” the first
revelation to “Joseph, the Seer,” at Kirk-

Jand,-Oh{o, in 1831, declaring that he had
heen qhosen

t to receive revelations and
jury. The pewsiget blade’ is three | §,865,056 year before last, and 8,301,013 same | that none other should be chosen “Until | ronald tee Guartinn::
inches long and véry sharp. It is] time in 1901,- he is taken,’ and then to be Chosen { Periods, Senator Haar wi

through him only, Many other extracts
from subsequent revelations. were read,
including that relating to polygamous
marrjages and the ‘Quthority to “seal for !
eternity,” or to perform. celestial mar-
Tlages. These passages were incorporated

Into the reeord pas a part of the testimony,

compares the figures of this week with | or o1 40g ag compared th the corre-| The book on Mormonis (fon? interrupted Mr, 1
] ' Ww sm by Brigham

Jast week, last yeay and the year be-| snonding period jast year, and thelr total | 1, Roberte was next taken up and vanced ee

fore.“ Itv shows a decrease for the takings since September 1st have in- ‘ip the same manner, _ ceived a revelation eom

‘Senator Hoar, in a lengthy statement,
going over the testimony that has heen
Introduced, said it would soon be known
whether Mr, Taylor expects to controvert

1,733,321 by Northern spinners. against

ie:

the facts as set forth he Mr, Smith that

weight of revelations: a
the land when the two
flict, and asked particuli
to the old revelations.

, bers, it was the effort
they were a little hard}
| what Mr. Smith would dc

tions conflicted -with the,
; wou.d you obey?” he as

would be
Smith.

people to do something whi
the law of the land, Whi
have to obey?”

Ply. “There is no compulss: }

Reference was made

lins: hastened after him.and grabbed | elpaged the aggregate is behind the 186 “No member of the church has eyer | Pill, which passed thd |
him’ as he was trying to get. over the | days of last year 166,000, behind the same | taught polygamy since that time!” March 8, 1901, and a |
fence. He was just in time to save| days year before last of 92,000, and aheqd| “How ahout Apostle Grant?” _ . ‘| the house. This bill pi :
the negre's life, as Officer Rodgers was} of 1901 by 472,000. f -Mr, Smith asserted that the incident | Prosecutions for act

just preparing to shoot the man down.] ‘The amount brought into sight during | over which. the antf-Mormon papers hag | Should be instituted, of

Mr. Smith had said

“Well, it was rather :¥
I was onf

and put an en

slature.”
Senator Hoar asked
to determin

Mr. Smith sald with ¢

awa, but with the youn:

perhaps. )

“With ~ me,
uppermost— |
+

“Cran you say ‘perhaps’ :

“Whichever they please’!

)
}
/
j

Ta? ee aS EET eee |

i
4

wh Verdict that. the .woman’ came to-her

{
j

Henriette Smith while officers were
called by telephone, he not knowing
that the police were coming. Police;
men Rodgers and McCall hastened to
the scene. Ag they. entered the door.
of ‘the .house Hudson saw them and
ran out of the back door. Levi Col-
lins..hastened after him.and grabbed
him'as he was trying to get. over the
fence. .He was just in time to save
the’ negro's life, as Officer Rodgers was’
just. prepaying to shoot the man down.
‘.Ta-a reporter Hudson. said (and he
was standing Jooking downonthe dead
waman's face while he spoke): “Yes,
sir, <I’ killed her, . I stood here with
my “arms -around her and_ opened’ my
knife’ and Stahhed her in the back. I
stabhed her five or six times.
her' dying, and I held her until I had
stabbed her enough, and then I. laid-
herdown -opn-the floor...I did.it.be+
cause she loved another man,” :

“Lieutenant Rondeau appeared a few
moments after ‘the capture and took
charge, calling Caroner Hirshfield’ by
telephone., The’ man was put in the
patrol wagon and taken to the station
and locked’ up, ‘He gaye his age as
twenty-eight’ years, and his residence
No. $08' East’ String street, Pensacola,
‘“Corgner Hirshfield had the’ body of
thewoman: removed to the .morgue,
where -he*empanelled a jury.” After
hearing; the evidence the jury returned

death by, knife wounds inflicted by
Edward®’ Hudson, and recommended
that he be. held on a Charge of murder.
The’man's- knife was exhibited to the
jJury.::)The:: principal -“blade* is three
inches slong -and véry sharp. It is
covered with blood ‘to the hilt. eet
et 2 Gaia —— —————— —— ~

S S-WORLD'S” VISIBLE SUPPLY. ’
“New ~ Orleans, Margh 4,—Secrétary.
Hester’s’* statement of. the world’s
visible supply of cotton, made up from
special] cable and telegraphic advices
compares -the figures of this week with
last jveek, last year and the year be-
fore... It “shows:-a ‘decréase for the
week “just. closed of 116,990, against a
decrease’ of (x) 45,828 last, year and a
dearease.of 67,289 year before last.
“The tetal visible is 3,536,607, against
3,653,597’ last week, (xx) 3,816,702 last
year and 4,321,750 year before Jast. Of
this, the total’ of American cotton is
2,491,607,. against 2,478,597 last week,
(xx)2,708,702 -jast: Year and 3,230,750
year-before last, and of all other kinds,
including Egypt, Brazil, Indja\ etc.,
104,600,: against 1,075,000 last week,
1,107,000. last “year and 1,091,000 “year
before last, ==)

‘The total. world’s visible supply of
cotton as above shows a decrease com-
pared..with last week of 116,990, a de-
crease ;~compared . with’: last year of
280,095, a decrease compared with year
before ‘last of 785,143, ; =

‘Of..the world’s visible supply of cot-
tén’as above ‘there is now float and
held in Great Britain and Continental

sin Hs Stmac

So ee eeneee emme ceoneand
. 7

‘ by Blood Wine, Jae nie

Pe ie 4 ‘
sd ze ts

“There are two kinds of bad stomachs
belonging to dyspeptics. One is like

Sree

I felt /’

{n 1901 of 74,000,

For the four days of March the lolals
show a decrease under laxt year of 24,000,
a decrease under the ra period year
before last of 4,000, and an increase, over
the same time in 1901 of. 14,000,

For the luy days of the season that have
elpaged the aggregate is behind the 186
days of last year 16§,000, behind the same
days year before last of 92,000, and ahead
of 1901 by 472,000. A
_-The amount brought into sight during
the past .week has’ been 137,{%9 bales,
against 176,989 for the seven days ending
this date’ last year,
last, and 123,588 same time “in 1901; and for
the four days of March it has been 86,344,
Against 109,853 last year, 90,491 year before
last, and 72,794 same time in 1901.. 4: ’

The moyement since Septemyer 1st
shows: ee AS . :

Receipts > at: all Unjted States ports
6,476,831, against 6,626,518 last Year, 6,532,748
year before last, and 5,922,902 same time
fn 1901. Bore:

Overland across * the Mississippi, Ohio
and: Potgmac rivers to Northern! mills
and Canada 756,212, against §65,599 last
year, 916,649 year before !ast,- and 903,405
same: time in 1901. * ° a

Interior stocks in excess’ of those held
at the close of the commercial year 296,115,
against 225,742 last year, 325,013 year be-
fore last, ann 577,814 same time in 1901.

Southern mill takings’ 1,244,000, against
LP2O0. AAR Nahe 57S ER RMo-pert petro re
and &96,802 samé.-time -in 190}, °° | fF 8

These make the’ total movement ‘for the
186 ‘days of. the season from September fst
to date 8,773,208, against 8,939,213 last year,
§,865,056 year before last, and 8,301,013 same
time in 19010 eS potas

Foreign exports far the week have heen
401,301, against 161,434 last ‘year, making
the total thus far for the Season 4,994,514,
against 5,213,951 last: year, a decrease of
919,437. Sy Paes fo

‘Northern mill takings and Canada dur-
ing the past seyen days show an increase
of 31.496 as compared with the corre-
sponding period last year, and their total
takings since September ist have in-
creased 89,830. The total takings of Amer-
icah mills, North, South ana Canada,
thus far for the season have been 3,014,480.
against 2,884,788 last year. These include
1,733,221 by Northern, spinners, against
1,643,491. |. é en gine

Stocks at the seaboard and the twenty-
nine Southern interfor centres have de-
creased-during the week 75,295 bales,
against’ a decrease during the correspond-
ing period last season ,of 48.860, and are
now 54,066 less than at this date in 1903.

‘Including stocks left over at ports and
interior towns from the last crop and the
number of bales hrnught into sight thus
far from the new crop, the supply to date
is 8,941,007, against, 9,154,287 for -the same
period. last year... Ee Pee ee aes atid

LIVERPOOL STATISTICS,

Liverpool, March »D--Following are
the weekly cotton statistics: :
oT ‘ ‘ a Os bo Bales.
Total sales of all KIndS,..+,4+.,° 52,000
‘Total sales American ’ N 44,000

eee eeereee

Inglish spinners’ takings.....,. 53,000
Total Oxporte: scresradesonne eeea 11,000
‘Import of all kinds .,,.,.+2+6.. 45,000
Import American 4.5 ..ecenceees 36,000
Stock of all kinds ,.......4....591,000

Stock American ,, Soot eee 06 18,000
Quantity afloat all kinds,....,.161,000
Quantity afloat American .:,...114,000
Total sales on _speculation,...,..,~ 2,100
Total sales-to:exparters ,.,.. see 1,500

eee

an old leather sack, shrivelled, wrinkled’
and: ¢d ned Q _— “or = —e

156,12L° yeay before

rast,"
"> 4 book, “Doctrine ang

ALY LN DIES |
' WAS UNABATE

or “r ~j

(Continued From: Page -One,)

‘‘No member of the church has ey
taught polygamy since that time!””:

“How about Apostle Grant?” )
-Mr, Smith asserted that: the incide
over which. the antf-Mormon papers h
made sucha ‘hubbub” had been ai dec]
ration merely that Apostle Grant had ty
Wives. That declaration, the witness sq}
had been made by Grant in a? priva
speech and he had not taught the practi:
of the system.’ PE

“What would you: do if the Princip
of plural marriages ' were publicly «a
tacked?" Senator McComas asked, ©!

‘We would defend it,” sajd Mr. Smith.

It was noon when this point was reacl:
ed and as none of the senators desired t
ask any more “questions of the witnes:
Mr. Taylor was instructed to Present th
various documents and books which h
desired to offer ag exhibits, ene

He sald it would take him half‘an hou
to read them and the committee adjourn
ed until 3 p.m, - “143

THE AFTERNUOQN SESSION,

Wh en the a fternoon session of the Com,
mittee” Opened, Mr. Taylor read from’ th
Covenants,” the fire
revelation to “Joseph, the Seer,” at Kirk
land,: Ohio, in. 1831, declaring that he ha.
heen qhosen to receive revelations an
that none other should be chosen’ “Unt!
he is taken,’’ and then to be » chose:
through him only, Many other extract
from subsequent revelations, were read
including that relating to’ palygamou:
marrjlages and the authority to “seal for
eternity,” or to perform celestial mar
rlages. These passages were incorporatec
Into the record as a part-of the testimony.

The book on Mormonism py Brigham
H, Roberts was next taken up and treated
‘in the same manner, i
“ Senator Hoar, in a lengthy statement,
going ever -the testimony that has been
introduced, ‘said it Would soon be known
whether Mr, Taylor expects to controvert
the facts as set forth by Mr. Smith’ that
there have been no plural marriages since
1890, but those who had plural wives would
continue to care for them.

“"T. expect _to show,” *said Mr. Taylor,
“that many plural marriages have been
solemnized in Utah since 1890.”

“And that Mr. Smoot had Knowledge of
them?” asked Mr. Beveridge,

“Whether with his knowledge I cannot
Bay. I cannet connect Smoot’s name with
Rav ward I uiter,” said Mr. Taylor,
‘Continuing, he said: i '

jl expect to show that these marriages
hdve been consummated among oflicers of
the church and that Senator Smoot as a
member of their helrarchy must have had
Knowledge of the act,” ,

Many quotations from the book called
“Articles of Faith’? were Included in.the
record, among them one which declared
that one chosen of God had the same au-
thority to teach His word and make com-
mands as powerful as though they came
from the Savior himself. This was read
to sustain revelations to- Joseph Smith,
Jr., or his successor. ; oe

A pamphlet on the Thatcher episode by

iil eee 7 = —

Fenn.

HONSLEY, Edward, black, elec AL3P (Monroe) 2/16/1896

Alabama Executes Inmate
AP 16 Feb 96 5:51 EST V0587
Copyright 1996 The Associated Press. All rights reserved.

The information contained in this news report may not be published,
broadcast or otherwise distributed without the prior written authority

of the Associated Press.

Alabama Executes Inmate

ATMORE, Ala. (AP) -- A man was executed in the electric chair early
Friday for helping to abduct, sexually assault and slash a 16-year-old
girl to death after escaping from a prison camp.

Edward Dean Horsley smiled and mouthed "I love you" to three friends
and his lawyer just before being strapped into the chair at Holman
Prison.

In his final statement, he said he had no animosity toward anyone
and thanked the guards for being kind to him during his 19 years on
death row.

Horsley, 38, was executed for the 1977 murder of Naomi Rolon of
Hudson, N.C. He and Brian Keith Baldwin abducted Naomi minutes after
they escaped from a prison camp, where Horsley was serving 10 years for
armed robbery, according to court records.

Sexually assaulted, choked and stabbed, Naomi was driven in the
trunk of her car to woods in southern Alabama, where she was slain with
a hatchet after Horsley was unable to kill her by driving over her.

The men were arrested the next day after stealing a truck. Horsley
then confessed. |

The U.S. Supreme Court on Thursday rejected his last-ditch appeal.

The execution had been delayed by three rounds of appeals, including
claims that his trial was unfair because the jury was all white.
Horsley and Baldwin are black; Naomi was white.

Courts found no evidence of racial discrimination.

The girl’s mother, also named Naomi, said she was frustrated that
state law does not allow a victim’s family to witness executions.

"I died inside when I lost her, and this is 19 years later," she
Said,

Baldwin was also given a death sentence. No execution date has been
set.

Inmate Executed In Alabama

AP 16 Feb 96 1:46 EST V0540

The information contained in this news report may not be published,

broadcast or otherwise distributed without the prior written authority
of the Associated Press.

Inmate Executed In Alabama

ATMORE, Ala.(AP) -- Nearly 19 years after helping abduct, sexually
assault and kill a 16-year-old North Carolina girl in a torturous drive
to rural Alabama, Edward Dean Horsley died in Alabama’s electric chair.

The U.S. Supreme Court -- Horsley’s last hope -- rejected his appeal
Thursday, as did the state Supreme Court and Gov. Fob James. Horsley
was pronounced dead at 12:15 a.m. CST (1:15 a.m. EST) Friday at Holman
Prison.

Horsley, 38, was sentenced to die for the March 14, 1977 murder of
Naomi Rolon of Hudson, N.C. The girl was abducted by Horsley and fellow
prison fugitive Brian Keith Baldwin while as she was going to visit her
father in the hospital. Sexually assaulted, choked and stabbed, she was
driven in the trunk of her car to woods in south Alabama, where she was
Slain.

Horsley, wearing prison whites, smiled widely at four witnesses who
attended on his behalf as he was led into the execution chamber. Guards
strapped Horsley into the bright yellow chair, and the warden read the
death warrant.

Horsley, still smiling, nodded to each of the witnesses -- three
friends and his attorney -- and mouthed, "I love you."

In his final statement, Horsley said he had no animosity toward
anyone and thanked the guards for being kind to him during his 19 years
on death row.

The electricity was applied, and Horsley’s fists clenched. There was

no movement after that. Horsley’s body fell limp about two minutes
later.

18 SUPREME COURT (Dec. Term,
[Holley v. The State. ]

the solicitor pro tempore appointed by the court, in the absence
of the solicitor of the circuit, for the particular term. As the
appointment was temporary, limited to the particular term, his
relation to the court is precisely expressed by the designation
appended to his signature—solvcztor pro tem. Any other des-
ignation would not have been true. _

2. There was no impropriety in the production and exhibi-
tion to the jury of the vest of the deceased, worn at the time
of the killing, and perforated by the shot.—Burrill on Cir.
Ky. 4387.

3. Reading to the jury as instructions extracts from
reported judicial decisions, or from text books, not accompa-
nied with instructions adapting them to the particular case, it
may be, is reprehensible, becanse of its tendency to confuse and
embarrass, rather than to enlighten them. The extracts from
the decisions of this court, which were read by the presiding

OF ALABAMA. 19

to ‘ {Holley v. The State. ]

—asudden affray. Dut to authorize them, there must be evi-
~ dence tending to show that there was in fact, or the cireum-
- stances generated a reasonable belief of, the existence of a

present, imperious necessity, not resulting from the wrongful
act of the defendant, for him to take the life of the deceased,

~~ to avoid the loss of his own life, or to avoid grievous bodily
harm. But in this case, that consideration may be waived
with the remark, that it is of the highest importance, in all
eases, civil or criminal, that instructions to the jury should
~-have their origin in a state of facts of which there is evi-
— dence, or which there is evidence tending to prove; otherwise,

they are abstract. The first of these instructions aftirms that

~-an honest belief of a necessity to take life will justify a homi-

‘cide. It is not an honest, but a reasonable belief, that justifies.

An honest may not be a reasonable belief; it may be the off-

_ spring of fear, ala‘m or cowardice, or it may be the result of
_ carelessness, and irrational. A reasonable_belief, generated by
~ the attendant gircumstances—cireumstances fairly.creating it—
honestly entertained, will justify a homicide; but not an irra-
-“tionat belief, ‘however honest it may be.—Oliver v. State, 17
Ala. 587; Harrison v. State, 24 Ala. 67. The second instrne-

judge in the course of his general charge, embody only settled
principles of the law of homicide, which it is the duty of the
court in some appropriate form to state to the jury in all cases
similar in facts to the present case. These extracts were not
submitted as mere abstract rules or principles of law; for it is

ns
3

Nel ie ac cae iat al hu CA it Big ey
zitites eee: : st ta

5
#

ye)

wr
if

Id)

apparent they were accompanied with instructions designed to
aid the jury in their application. Of these instructions there
is no complaint; and there is no room for any other presump-
tion than that they were appropriate and just.

4. The first instruction requested by the defendant was
properly refused ; it is so framed and expressed that its imme-
diate tendency was to confuse, if not to mislead the jury. The
material inquiry was, whether the homicide was committed
willfully, deliberately, maliciously, and with premeditation. a:
may be said, there could not have been a concurrence of these
elements, unless the heart of the defendant was depraved—
unless, in the language of the instruction, he had murder cn
his heart. That depends upon the construction which the
instruction may receive from the jury; and if it be the true
and only construction of which it is justly susceptible, it is
obvious the mere statement of the abstract proposition would
have been confusing and embarrassing, unless followed by an
explanatory instruction, directing the attention of the jury to
the necessary ingredients of murder in the first degree.
Instructions requested, having a tendency to confuse or mis-
lead, or which require explanation ,or qualification, are prop-
erly refused.—1 Brick. Dig. 339, $§ 660-61.

5. It is not clear or apparent that the evidence authorized
instructions touching the law of justifiable homicide. The
error is, perhaps, too common, that such instructions are appro-
priate whenever the killing occurred on a sudden quarrel, or in

Vou. LXxv.

tion is equally, if not more objectionable. It is enough to say

Of it, that if the evidence has any tendency to show an intent
on the part of the deceased, or an attempt by violence to take
the gun from the defendant, ifthe intent and attempt had been
consummated, robbery could not possibly have been imputed to
the deceased: A felonious intent, the intent to steal, is as essen-

_tial to the commission of robbery, as it is to the commission of
larceny. The only intent imputable to the deceased, if the

gan had been taken violently from the hands of the defendant,

~ would have been an intent to compel the defendant to pay a

debt due to the brother of the deceased; this was not a felo-

“hious intention, though it would not excuse or mitigate the
trespass committed in the taking.—2 Bish. Cr. Law, $$ 849,
11622.
-. 6. Murder in the first degree, as it is described and defined
“by the statute, is of four kinds or classes, which were carefull

enumerated and distinguished in M¢tchell v. State, 60 Ala. 26;
“And it is not now necessary to repeat the classification and dis-

tinction. This homicide, if it be murder in the first degree,
falls within that species described in the statute, to distinguish
it from all other species, as “any other willful, deliberate,
malicious, premeditated killing.” The elements or qualities of
the offense being declared so particularly, it is essential that
each and all should concur and co-exist ; the absence of either,
if it does not relieve the act of all criminality, at least reduces
it to some other degree of criminal homicide. J/alicious, as

ei rhre

eaten:

(Dee. Term,

SUPREME COURT
{Holley v. The State.]

the term is used in. the statute, is construed as signifying a
killing perpetrated with fixed hate, or done with wicked inten-
tions or motives, not the result of sudden passion.— Mitchell
v. State, supra. The fixed hate, or the evil intent or purpose
may be instantaneous—there may not have been any previous
manifestation of it; hence, we find it constantly laid down in
the books, in reference to malice as the element of murder at
common law, and as the element of murder in the first degree
under statutes dividing felonious homicide into degrees, that it
is enough if it exists at the instant of the killing, although it
may be at a period of time inappreciably distant.—Whart.
Hom. §§ 32-33. The obvious error of the instruction requested
by the appellant, which, it is supposed, it was intended should
direct the attention or the jury to an inquiry into the presence
or absence of malice, is, that it attaches an undue importance
to the want of previous malice on the part of the defendant
towards the deceased, and hence, was calculated to mislead,
unless followed by explanatory instructions. | A court may
properly refuse an imperfect Instruction —an Instruction which
needs modification, qualification or explanation. The instrue-
tion is also wanting in precision and definiteness ; it it difficult
to discover from it the precise point which it was intended to
raise. It has long been the practice of this court on error not
to revise the refusal of instructions which are wanting in cer-
tainty. Such instructions are calculated to mislead the pri-
mary court and to confuse the jury.

7. A motion in arrest of judgment must be founded on
matter apparent on the face of the record. Extraneous matter
may be the subject of a motion for a new trial, but is not
available on motion to arrest the judgment.— Blount v. State,
49 Ala. 383. The omission of the presiding judge to indorse
“given” upon the instructions requested by the defendant,
and given to the jury, was not an error of which advantage
could be taken on a motion in arrest of judgment. It was
matter of exception at the time it oceurred, but none was
taken; and the failure to take the exception was a waiver of
the error.

We have given the record a careful examination and patient
consideration, not unwilling to find error which would justify
a reversal of the judgment, and a grant of another trial to the
defendant. We have not found it; and our duty is an affirm
ance of the judgment. As the day for the execution of the
defendant has passed, another day will be appointed by the
judgment of this court.

Vou. LXXY. :

OF ALABAMA. 21
{Kelly v. The State. |

kelly v. The State.

=? .
Indictment for an Attempt to have Carnal Knowledge of a
gis female under Ten Years of Age.

91. Infant of tender years; competency of as a witness.—The sole reason
_ that infants of tender years are not allowed to testify as witnesses is,
_ that they do not, at the time their testimony is offered) comprehend and
~ realize the danger and impiety of falsehood; and hence, that an infant
/-was of too tender years to be sworn, at the time of the occurrence of the
— transaction, about which he is afterwards called to testify, does not ren-
«der him incompetent, but is merely a circumstance that bears on the
weight of his testimony.
<2. Same.—That an infant female was incompetent to testify on a
“former trial of a defendant charged with an attempt to have carnal
knowledge of her, and was then so adjudged by the court, does not effect
her competency on a subsequent trial of the same case, had after new
trial granted. ’

Appear from Wileox Circuit Court.
_ Tried before Hon. Jonny Moore.
_ The facts are sufliciently stated in the opinion.

~~ Joun Y. Kinvarnick, for appellant.

H.C. Tourktys, Attorney-General, for the State.

_. STONE, J.—The charge on which defendant was tried and
_convicted, was an attempt carnally to know a female child
‘Under ten years of age. When the attempt is alleged to have
been made, the child was a little over six years of age. There

“Were two trials; the first, when the child was between seven
and eight years old. The presiding judge did not then allow
her to testify, he not being satistied she had sufticient knowl-

edge of the binding obligation of an oath. The accused was
“hevertheless convicted without her testimony. A new trial
Was granted. ;

_ At the second trial—spring term, 1884—the child, on exam-
“nation, was adjudged to be competent, and she testified. She
-was then over eight years old. We are uot informed what

questions were propounded to her, nor what answers she gave,
and hence are not called upon to determine the sufficiency of
the evidence she furnished of her competency to testify. The

Court ruled her competent. She was examined and eross-ex-
amined as a witness before the jury, and the defendant

Alabama Executes Inmate
AP 16 Feb 96 2:20 EST V0550
Copyright 1996 The Associated Press. All rights reserved.

The information contained in this news report may not be published,

broadcast or otherwise distributed without the prior written authority
of the Associated Press.

Alabama Executes Inmate

ATMORE, Ala. (AP) -- A man was executed in the electric chair early
Friday for helping to abduct, sexually assault and kill a 16-year-old
girl in 1977.

Edward Dean Horsley smiled and mouthed "I love you" to three friends
and his lawyer just before being strapped into the chair at Holman
Prison in Atmore.

In his final statement, he said he had no animosity toward anyone
and thanked the guards for being kind to him during his years on death
row.

Horsley, 38, was executed for the murder of Naomi Rolon of Hudson,
N.C. He and Brian Keith Baldwin abducted Miss Rolon minutes after they
escaped from a prison camp, according to court records.

Sexually assaulted, choked and stabbed, Miss Rolon was driven in the
trunk of her car to woods in southern Alabama, where she was slain. The
men were arrested the next day after stealing a truck. Horsley then
confessed.

His last-ditch appeal was rejected Thursday by the U.S. Supreme
Court.

The execution had been delayed by three rounds of appeals, including
claims that his trial was unfair because the jury was composed entirely
of whites. Horsley and Baldwin are black; Miss Rolon was white.

Courts ruled against Horsley’s attempts to challenge the
prosecution’s striking of all eight blacks from the jury pool, saying
they found no evidence of racial discrimination.

Miss Rolon’s mother, also named Naomi, said she was frustrated that
state law does not allow a victim’s family to witness executions.

"Oh, definitely I would like to be there," she said. "I died inside
when I lost her, and this is 19 years later."

Baldwin was also given a death sentence. No execution date has been
set.

2 veuse LUIN tO TALE, 2B

Killer's attorneys seek
to stop Feb. 16 execution

THE ASSOCIATED PRESS

MONROEVILLE — Attorneys for
a man convicted of helping abduct
and kill a 16-year-old North Caroli-
na girl in 1977 filed an appeal
Wednesday to stop his execution,
scheduled for Feb. 16.

The appeal in Monroe County
Circuit. Court argues that Edward
Horsley, 38, suffered from a child-
hood head injury and abuse. It also

accuses prosecutors of deliberately.

excluding black jurors from his
trial. Horsley is black: the victim,
Naomi Rolon, was white.

Similar appeals by Horlsey’s law-
yers have been turned down by
State and federal courts, said Clay
Crenshaw of the Alabama attorney
general’s office in Montgomery.

“I don’t know why we have to lit-

igate these things over again,” he

said.
A telephone message left at the

SECTION

THURSDAY
February 8, 1996 —_

—

oe
eoovoeee
evocccecesooser®

.
eooovee

oe
eooceee
evecccccooseers®

eocooee

Legal Defense Fund of the National
Association for the Advancement
for Colored People in New York
was not returned Wednesday. Law-
yers from the fund are Yrepresent-
ing Horsley.

Horsley was convicted in No-
vember 1977 of killing Miss Rolon
on March 14, 1977, in a wooded
area of Monroe County in south Al-
abama. |

According to prosecutors, Hor-

Sley and fellow inmate Brian Keith

Baldwin escaped from a North Car-
olina prison camp, stole Miss Ro-
lon’s car and took her to Charlotte,
N.C. There, she was beaten, sexual-
ly assaulted and stabbed.

They locked her in the trunk of
her car, drove her to Monroe Coun-
ty and tried running her over be-
fore killing her with a hatchet,
according to prosecutors.

Baldwin, also convicted of Capi-

tal murder, is awaiting execution,
but no date has been set.

4
q
4

’

eee
eoooee
eoooeee
eoeoee
oovese
eovgee
eeocee
eoacon®

I i tine

: Horsley
executed
for murder

By Michael Pearson
Associated Press Writer

ATMORE — Nearly 19 years
after helping abduct, sexually
assault and kill a 16-year-old North
Carolina girl in a torturous drive to
rural Alabama, Edward Dean Hors-
ley died in Alabama’s electric chair.

The U.S. Supreme Court —

- Horsley’s last hope — rejected his
appeal Thursday, as did the state
Supreme Court and Gov. Fob
James. Horsley was pronounced
dead at 12:15 a.m. CST Friday at
Holman Prison.

Horsley, 38, was sentenced to
die for the March 14, 1977 murder
of Naomi Rolon of Hudson, N.C.

_ The girl was abducted by Horsley
and fellow prison fugitive Brian
Ww
N
wy

Keith Baldwin while as she was
going to visit her father in the hos-
pital. Sexually assaulted, choked
and stabbed, she was driven in
the trunk of her car to woods in
south Alabama, where she was
slain.

Horsley spent nearly 15 hours
Thursday visiting with lawyers, a
friends and family, including sis- mx)
ters Cateta Robertson and Pam ..
Crawford and brothers Donald and \)
Darren Horsley. Nb

He gave Ms. Crawford his per- w_
sonal papers, a watch, « ring and _
two Bibles. Baldwin, who is also on |
death row at Holman, got Horsley’s
TV, a gold chain and books.

Horsley declined a las! meal. He
was scheduled to return to his cell
at 10:30 p.m. CST to shc wer, have

his head shaved and await his exe-
cution with the Rev. Dwayne Win-
ters, the prison chaplain.

Horsley’s execution iad been
delayed by three rounds : f appeals,
including claims that hi: trial was
unfair because the jury vas com-
posed entirely of whites.

EaGle, Oahu ACK

ALABAMA

Sunday, February 11, 1996

Death row inmates wait to die while courts ponder cases

By The Associated Press

BIRMINGHAM — _ Edward
Horsley.has spent almost half his
life on Alabama’s death row, wait-
ing to be executed.

Horsley, 38, is scheduled to be
put to death shortly after midnight
Thursday.

He is one of 135 men and five
women on the state’s death row,
many of whom have been there for
years as lengthy appeals are car-
ried out.

Five Alabama death row
inmates have cases that date back
to 1977. One man, Clyde Cade, is 68
years old. He still waits, though he
_ was sentenced to die 16 years ago.

“We are the only state in the
country where death penalty cases
are reviewed in both the Court of
Criminal Appeals and the state
Supreme Court,” said Sandra Stew-
art, head of capital litigation for the
state attorney general’s office. “We
want to cut out the appeals court
and go straight to the Supreme
Court. We feel it would save an
average of four years in the appeals
process.”

Death penalty —_ opponents,
though, argue that appeals must be
long and thorough. Birmingham
attorney Joe Morgan recalls the
case of Walter McMillan of Mon-
roeville, who spent six years on
death row before authorities fig-
ured out they had the wrong man.

“The process does not need to

David Larry Nelson has been on
death row for more than 17 years

be shorter,” Morgan said.

Horsley, of Charlotte, N.C., was
sentenced to die in 1977 at the age
of 19. He was convicted of fatally
stabbing 16-year-old Naomi Rolon
and hiding her body in the trunk of
his car.

It would be the state’s first exe-
cution since May, 1995. Alabama
had two executions only weeks
apart last year, when Willie Clisby
and Varnell Weeks were put to
death. Those cases were controver-

sial because of the mental state of
the prisoners. Defense lawyers
claimed it was inhumane to execute
people who were mentally ill.

One man on Alabama’s death
row, David Larry Nelson, actually
wishes death would come more
quickly. He has been waiting for 17
years.

. “‘T've just been sitting here,
existing, with nothing to look for-
ward to except death,” said Nelson,
convicted in Jefferson County of
fatally shooting a cab drivér during
a New Year’s Eve robbery in 1977.
“Tm tired of sitting here. It’s over.
Let’s go.”

Nelson, 50, is the inmate who
requested that his execution be
televised. The state Department of
Corrections turned him down.

He also was convicted of killing
another man just hours after the
death of cabbie James Dewey Cash
Jr., 53. The slayings happened only
six weeks after Nelson was
released from prison on parole. He
had served six years of a 12-year
sentence for second-degree mur-
der.

Death row inmates are kept in
their cells for nearly 23 hours a day,
Nelson said. They may exercise for
45 minutes a day and shower every
other day. They eat their meals in
their cells.

Nelson was transferred to Don-
aldson Correctional Facility in Jef-
ferson County in 1987 when space

got scarce at Holman Prison in |_

Atmore. He is tired of waiting,
though, regardless of which prison
he is in.

“I wake up sometimes dreaming
about them strapping me into the
chair,” Nelson said. “I imagine I
will accept it with ease, like I’m
finally going free from this situa-
tion. There certainly wouldn’t be
much to say.”

Nelson said he has already

decided on his last meal: two fried
bologna sandwiches with lettuce
and a side of french fries.

Stewart said the attorney gener-
al’s office is confident the Legisla-
ture will stake steps to streamline
the execution process, so people
like Nelson aren’t kept waiting. But
opponents point to Nelson as. evi-
dence that life in prison is worse
than death.

"Specialist in Fine
Jewelry and Services"

ALL STER?
1

orhtage °

from

The United States LAW WEEK

6-18-85

53 LW 4762

The language of §13-11-4, to be sure, in so many words
does not preclude the sentencing judge from considering the
jury’s “sentence” in determining whether the death penalty is
appropriate. The first clause of the section—“the court,
after weighing the aggravating and mitigating circum-
stances, may refuse to accept the death penalty as fixed by
the jury and sentence the defendant to life imprisonment
without parole”—does not authorize or require the court to
weigh the jury’s “sentence” in determining whether to refuse
to impose the death penalty. The second clause—"or the
court, after weighing the aggravating and mitigating circum-
stances, and the fixing of death by the jury, may accordingly
sentence the defendant to death”—does seem to authorize
consideration of the jury’s “sentence.” It is not clear
whether the second clause allows consideration of the jury’s
“sentence” only if the weighing of the aggravating and miti-
gating circumstances authorized in the first clause has indi-
cated that the “sentence” should not be rejected, or whether
the second clause allows the judge to ignore the first clause
and count the jury’s “sentence” as a factor, similar to an ag-
gravating circumstance, weighing in favor of the death pen-
alty. We therefore look to the Alabama courts’ construction
of §13-11-4. See Proffitt v. Florida, supra; Jurek v. Texas,
428 U. S. 262, 272-273 (1976) (opinion of Stewart, POWELL,
and STEVENS, JJ.).

The Alabama appellate courts have interpreted the 1975
Act expressly to mean that the sentencing judge is to impose
a sentence without regard to the jury’s mandatory “sen-
tence.” The Alabama Court of Criminal Appeals has stated:
“The jury’s function is only to find guilt or innocence. The
jury is not the sentencing authority.” Jacobs v. State, 361
So. 2d 607, 631 (1977), aff’d, 361 So. 2d 640 (Ala. 1978), cert.
denied, 439 U. S. 1122 (1979). Indeed, the court has gone so
far as to state:

“No sentence exists until the pronouncement by the trial
judge at the conclusion of the sentence hearing. It is for
this reason that the court cannot be said to be commut-
ing a sentence of death imposed by the jury, but, in truth
and in fact, it is sentencing the accused after a jury’s
finding of guilt.” Beck v. State, 365 So. 2d 985, 1005,
aff'd, 365 So. 2d 1006 (Ala. 1978), rev'd on other grounds,
447 U.S. 625 (1980).

The court further has described the judge’s role as follows:

“The sentencing hearing is one of the most important
and critical stages under Alabama’s death penalty law.
The guilt stage has passed. Now an experienced trial
judge must consider the particularized circumstances
surrounding the offense and the offender and determine
if the accused is to die or be sentenced to life imprison-
ment without parole. ... The trial evidence must be
reviewed to determine all of the aggravating circum-
stances leading up to and culminating in the death of the
victim and then all the mitigating circumstances must be
considered in determining if any outweigh the aggravat-
ing circumstances so found in the trial court’s findings of
fact.” Richardson v. State, 376 So. 2d 205, 224 (1978),
aff’d, 376 So. 2d. 228 (Ala. 1979).

Conspicuously absent from the court’s description of the
judge’s duty is any mention of according weight or deference
to the jury’s “sentence.”

The Supreme Court of Alabama agrees that “the jury is not
the sentencing authority in. . . Alabama,” and has described

the sentencing judge not as a reviewer of the jury’s “sen-
tence,” but as the sentencer:

“In Alabama, the jury is not the body which finally de-
termines which murderers must die and which must not.
In fact, Alabama’s statute mandatorily requires the
court to ‘hold a hearing to aid the court to determine
whether or not the court will sentence the defendant to
death or to life imprisonment without parole,’ and spe-
cifically provides that the court may refuse to accept the
death penalty as fixed by the jury and may ‘sentence’ the
defendant to death or life without parole. Code of Ala.
1975, §13-11-4. That section provides that if the court
imposes a ‘sentence of death’ it must set forth, in writ-
ing, the basis for the sentence.” Jacobs v. State, 361
So. 2d 640, 644 (1978), cert. denied, 439 U. S. 1122 (1979)
(emphasis in original; footnote omitted).

See also Ritter v. State, 429 So. 2d 928, 935-936 (Ala. 1983);
Beck v. State, 396 So. 2d 645, 659 (Ala. 1981).

In this case, moreover, it is clear that the sentencing judge
did not interpret the statute as requiring him to consider the
jury's “sentence,” because he never described the “sentence”
as a factor in his deliberations. After the jury returned its
verdict, the trial judge informed petitioner:

“Let me say this: The jury has found you guilty of the
crime of robbery with the aggravated circumstances of
intentionally killing the victim . . . and set your punish-
ment at death by electrocution but the law of this state
provides first that there will be an additional hearing in
this case at which time the Court will consider aggravat-
ing circumstances, extenuating and all other circwm-
stances, concerning the commission of this particular of-
fense” (emphasis added). Tr. 249.

In addition, in imposing the sentence, the judge stated:

“The Court having considered the aggravating cir-
cumstances and the mitigating circumstances and after
weighing the aggravating and mitigating circumstances,
it is the judgment of the Court that the aggravating cir-
cumstances far outweigh the mitigating circumstances
and the death penalty as fixed by the jury should be and
is hereby accepted” (emphasis added). App. 18.

None of these statements indicates that the judge considered
the jury’s verdict to be a factor that he added, or that he was
required to add, to the scale in determining the appropriate-
ness of the death penalty, or that he believed the jury’s ver-
dict was entitled to a presumption of correctness. The
judge, of course, knew the Alabama system and all that it sig-
nified, knew that the jury’s “sentence” was mandatory, and
knew that it did not reflect consideration of any mitigating
circumstance. The judge logically, therefore, would not
have thought that he owed any deference to the jury’s “sen-
tence” on the issue whether the death penalty was appropri-
ate for petitioner.*

III

Petitioner contends, nevertheless, that a judge’s decision
to impose the death penalty must be swayed by the fact that
the jury returned a “sentence” of death. He points to this
Court’s opinion in Beck v. Alabama, 447 U.S. 625, 645
(1980), which expressed some skepticism about the influence
the jury’s “sentence” would have on a judge. Beck held un-

* We express no view regarding the constitutionality of a death sentence
imposed by a judge who did consider the jury’s verdict in this Alabama
statutory structure as a factor that weighed in favor of the imposition of
the death penalty.

6-18-85

The United States LAW WEEK

53 LW 4763

constitutional the provision of the 1975 Act that precluded
the jury from considering lesser-included noncapital offenses.
The Court reasoned that the provision violated due process,
because where the jury’s only choices were to convict a de-
fendant of the capital offense and “sentence” him to death, or
to acquit him, but the evidence would have supported a
lesser-included offense verdict, the factfinding process was
tainted with irrelevant considerations. On the one hand, the
Court reasoned, the unavailability of the option of convicting
on a lesser-included offense may encourage the jury to con-
vict the defendant of a capital crime because it believes that
the defendant is guilty of some serious crime and should be
punished. On the other hand, the apparently mandatory na-
ture of the death penalty may encourage the jury to acquit
because it believes the defendant does not deserve the death
penalty. The unavailability of the lesser-included offense
option, when it is warranted by the evidence, thus “intro-
duce[s] a level of uncertainty and unreliability into the
factfinding process that cannot be tolerated in a capital case.”
Id., at 642-643.

In so holding, this Court rejected Alabama’s argument
that, even if the unavailability of a lesser-included offense led
a jury erroneously to convict a defendant, the fact that the
judge was the true sentencer would ensure that the defend-
ant was not improperly sentenced to death. It reasoned:

“{I]t is manifest that the jury’s verdict must have a tend-
ency to motivate the judge to impose the same sentence
that the jury did. Indeed, according to statistics sub-
mitted by the State’s Attorney General, it is fair to infer
that the jury verdict will ordinarily be followed by the
judge even though he must hold a separate hearing in
aggravation and mitigation before he imposes sentence.
Under these circumstances, we are unwilling to pre-
sume that a post-trial hearing will always correct what-
ever mistakes have occurred in the performance of the
jury’s factfinding function.” Jd., at 645-646 (footnote
omitted).

This Court’s concern in Beck was that the judge would be in-
clined to accept the jury’s factual finding that the defendant
was guilty of a capital offense, not that the judge would be
influenced by the jury’s “sentence” of death. To “correct” an
erroneous guilty verdict, the sentencing judge would have to
determine that death was an inappropriate punishment, not
because mitigating circumstances outweighed aggravating
circumstances, but because the defendant had not been
proved guilty beyond a reasonable doubt. Obviously, a judge
will think hard about the jury’s guilty verdict before basing a
sentence on the belief that the defendant was not proved
guilty of the capital offense. Indeed, the judge should think
hard before rejecting the guilty verdict, because the deter-
mination of guilt is properly within the province of the jury,
and the jury heard the same evidence regarding guilt as the
judge.

It does not follow, however, that the judge will be swayed
to impose a sentence of death merely because the jury re-
turned a mandatory death “sentence,” when it had no oppor-
tunity to consider mitigating circumstances. The judge
knows that determination of the appropriate sentence is not
within the jury’s province, and that the jury does not con-
sider evidence in mitigation in arriving at its “sentence.”
The jury’s “sentence” means only that the jury found the de-
fendant guilty of a capital crime—that is, that it found the
fact of intentional killing in the course of a robbery—and that
if the judge finds that the aggravating circumstances out-
weigh the mitigating circumstances, the judge is authdrized
to impose a sentence of death. The “sentence” thus conveys
nothing more than the verdict of guilty, when it is read in

onsen eadanamitatnanadibenndabciaetbidaieedidatnemeaeinabeneaeiiaintieiess tatiana innate aati ieee

qcr

conjunction with the provisions of the 1975 Act making the
offense a capital crime, would convey. It defies logic to as-
sume that a judge will be swayed to impose the death penalty
by a “sentence” that has so little meaning. Despite its mis-
described label, it is not a sentence of death.

Petitioner also argues that the requirement that the jury
return a “sentence” of death “blurs” the issue of guilt with
the issue whether death is the appropriate punishment, and
may cause the jury arbitrarily to nullify the mandatory death
penalty by acquitting a defendant who is proved guilty, but
who the jury, without any guidance, finds undeserving of the
death penalty. Petitioner’s argument stems from Woodson,
where the plurality opinion noted that American juries “per-
sistently” have refused to convict “a significant portion” of
those charged with first degree murder in order to avoid
mandatory death-penalty statutes, and expressed concern
that the unguided exercise of the power to nullify a manda-
tory sentence would lead to the same “wanton” and “arbi-
trary” imposition of the death penalty that troubled the
Court in Furman. 428 U.S., at 302-303. The Alabama
scheme, however, has not resulted in such arbitrariness.
Juries deliberating under the 1975 statute did not act to nul-
lify the mandatory “sentence” by refusing to convict in a sig-
nificant number of cases; indeed, only 2 of the first 50 defend-
ants tried for capital crimes during the time the 1975 Act was
in effect were acquitted. See Beck v. Alabama, 447 U. S.,
at 641, n. 18. Thus, while the specter of a mandatory death
sentence may have made juries more prone to acquit,
thereby benefiting the two defendants acquitted, it did not
render Alabama’s scheme unconstitutionally arbitrary.

The wisdom and phraseology of Alabama's curious 1975
statute surely are open to question, as Alabama's abandon-
ment of the statutory scheme in 1981 perhaps indicates.’
This Court has made clear, however, that “we are unwilling
to say that there is any one right way for a State to set up its
capital-sentencing scheme.” Spaziano v. Florida,
U.S. , —— (1984) (slip op. 16). See also Zant v. Ste-
phens, 462 U. S., at 884 (slip op. 22); Gregg v. Georgia, 428
U. S., at 195 (opinion of Stewart, PowELL, and STEVENS,
JJ.). Alabama's requirement that the jury return a “sen-
tence” of death along with its guilty verdict, while unusual,
did not render unconstitutional the death sentence the trial
judge imposed after independently considering petitioner's
background and character and the circumstances of his crime.

The judgment of the Supreme Court of Alabama is
affirmed.

It is so ordered.

*Following this Court’s decisions in Beck vy. Alabama, 447 U. S. 625

Alabama held that in a capital case in which the jury is instructed regard-
ing a lesser-included noncapital offense
“the requirement in § 13-11-2(a), that the jury ‘shall fix the punishment at
death’ [is construed] to be permissive and to mean that the jury cannot fir
punishment at death until it takes into account the circumstances of the
offense together with the character and propensity of l
sentencing procedures which will miminize the risk
capricious imposition of the death penalty” (emphasis in origi
v. State, 396 So. 2d 645, 660 (1981).

The Alabama Legislature then repealed the 1975 Act, and replaced it
with a trifurcated proceeding in which the jury first determines guilt or

gravation and mitigation. On the basis of that evidence. a!
advisory sentence. If the verdict is for death, that se not ing
on the trial judge, who then is required to hold another hearing regarding
aggravating and mitigating circumstances before determining the actual
sentence. Ala. Code § 13A—5-39 to 13A-5—59 (1982).

Sunday Montgomery Advertiser

_. 4C February 11, 1996

RECALL

from page 1C
get out and when they stopped,
they stabbed her.”

Assistant Attorney General Clay
Crenshaw said Baldwin’s' execu-

tion still might be “a couple of

_- years away” because of legal issues
--that are expected to delay imple-

mentation of his death sentence for
more than two decades.

The victim’s mother, also named
Naomi Rolon, plans to bring two of
her surviving three children to Al-
abama for Horsley’s execution.

She said they most likely will
stay in Montgomery and not travel
to Atmore, where the execution
will take place.

Mr. Crenshaw said Alabama law

prohibits victim’s relatives from
witnessing executions. He said the
only way for that to happen would
be for Horsley to extend an invita-
tion to them.

Mrs. Rolon said her daughter
was on her way to visit her hospi-
talized father when her car appar-
ently stalled during heavy rain.

Horsley and Baldwin, who over-
powered the teen-ager, pushed her

into the trunk and headed south.
“She was a hard-working wait-
ress who was looking forward to
her last year in high school,” Mrs.
Rolon said. “She was a virgin. She
didn’t have any boyfriends.”
Juries were presented over-
whelming’ evidence against Hor-
sley and Baldwin, Mr. Pearson
said. In addition to their confes-
sions, fingerprints were found ‘“‘all

over the scene,” he said.

Horsley’s attorneys are submit-
ting last-minute appeals to save his
life, claiming he was abused and
suffered from a head injury as a
child.

Mr. Crenshaw noted that similar
appeals have been “up and down”
legal ladders in state and federal
courts fot years.

Mrs. Rolon, 66, said Horsley’s ex-

ecution will bring “partial clo-
sure” to her grief.

She said she plans to come to Al-
abama for Baldwin’s execution,
when it is scheduled.

“When a loved one has been
murdered, you’ve lost a part of
you,” she said. “Unless you've
been through what we've been
through, it’s impossible to under-
stand the pain.”

arent AY

The United States LAW WEEK

6-18-85

53 LW 4758
be accommodated through an amendment eliminating provi-
sions of concern to his Committee. [bid. This proposal met
with approval, see ibid., and accordingly, Representative
Spellman offered an amendment, on behalf of the House Post
Office and Civil Service Committee, to retain the mandatory
retirement provisions applicable to certain specific federal
occupations, including law enforcement officials and
firefighters. See 123 Cong. Rec. 29002 (1977) (statement of
Rep. Hawkins); Legislative History 399. In so doing, Rep-
resentative Spellman stated:

“I hasten to point out that this amendment does not
indicate opposition perse [sic] to elimination of manda-
tory retirement for air traffic controllers, firefighters,
and other specific occupations.

“However, since most of these mandatory retirement
provisions are part of the liberalized retirement pro-
grams, our committee believes that such provisions
should not be repealed until the individual retirement
programs have been reexamined.” 123 Cong. Rec.
30556 (1977); Legislative History 415.

Similarly, Representative Pepper, a sponsor of the 1978
ADEA amendments, made clear:

“For the record, Mr. Chairman, I should state what
might appear to be obvious: That we in the House, in de-
bating and passing this amendment, are making no judg-
ment whatever on the desirability of retaining the ages
now established by the various statutes affected for
forced retirement. That judgment, I am sure, will be
rendered when the committees involved bring subse-
quent legislation to the floor.” Id.

And again, Representative Hawkins, Chairman of the Sub-
committee on Employment Opportunities of the House Com-
mittee on Education and Labor, stated that “[t]he sole pur-
pose of this agreement is to afford the committees the
opportunity to review these statutes.” Ibid. The manda-
tory retireme:.. provisions were, accordingly, retained when
the 1978 Amendments were enacted. See Pub. L. 95-256,
$5(c), 92 Stat. 191; see also H. R. Conf. Rep. No. 95-950,
pp. 10-11 (1978); Legislative History 521-522." :
In sum, almost four decades of legislative history establish
that Congress at no time has indicated that the federal retire-
ment age for federal firefighters is based on a determination
that age 55 is a bona fide occupational qualification within the
meaning of the ADEA. Congress adopted what might well
have been an arbitrarily designated retirement age in an era

“ Thereafter, Representative Spellman’s Subcommittee held hearings on
the retirement provisions of 5 U. S. C. §8335(b) and heard testimony on
the mandatory provision. The Committee also considered a report of the
General Accounting Office, which found that “{r]etirement policies that dis-
regard difference in physical abilities and productive capacity are costly
and wasteful.” Report to the House Committee on Post Office and Civil
Service by the Comptroller General of the United States: Special Retire-
ment Policy for Federal Law Enforcement and Firefighter Personnel
Needs Reevaluation 10 (1977). The Subcommittee took no action to
change the mandatory rules.

More recently, Congress has again been confronted with a Report sug-
gesting that mandatory age limits for law enforcement personnel are un-
necessary and wasteful. The Report, published by the House Select Com-
mittee on Aging, states that “it is impossible to justify mandatory
retirement or maximum hiring age policies based on arguments of public
safety or job-related performance.” Chairman, House Select Committee
on Aging, The Myths and Realities of Age Limits for Law Enforcement
and Firefighting Personnel, 98th Cong., 2d Sess., IV (Comm. Print 1984).
Legislation also has been introduced in the House to eliminate mandatory
retirement for al] federal employees not currently covered by the ADEA,
including firefighters. H.R. 1710, 99th Cong., 1st Sess. (introduced
March 25, 1985).

not concerned with the pervasive discrimination against the
elderly that eventually gave rise tothe ADEA. Thereafter,
although Congress retained mandatory limitations in 1978,
while questioning whether they continued to make good pol-
icy sense, it did so for the sake of expediency alone. On con-
sidering the language and history of the civil service provi-
sion, we find it quite possible that factors other than
conclusive determinations of occupational qualifications
might originally have led to passage of this federal rule, and
that the reason for its retention after 1978 further undercuts
any argument that Congress has determined that age is a
BFOQ for federal firefighters.

In the absence of an indication that Congress in fact
grounded the age limit on occupational qualifications, we will
not presume that it did so intend. The myriad political pur-
poses for which Congress might properly make decisions af-
fecting federal employees, and that body’s uncontested au-
thority to exempt federal employees from the requirements
of federal regulatory statutes, simply do not permit the con-
clusion that Congress passed or retained this retirement pro-
vision because it reflects bona fide occupational qualifica-
tions. We therefore conclude that this civil service
provision does not articulate a BFOQ for firefighters, that its
presence in the United States Code is not relevant to the
question of a BFOQ for firefighters, and that it would be
error for a court, faced with a challenge under the ADEA to
an age limit for firefighters, to give any weight, much less
conclusive weight, to the federal retirement provision.

Were there evidence that Congress in fact determined that
a class of federal employees must retire early based on the
same considerations that support a finding of a BFOQ under
the Act, the situation might differ. Of course, if Congress
expressly extended the BFOQ to nonfederal occupations,
that determination would be dispositive. But if it did not,
the federal exemption nevertheless might be relevant to an
appropriate employer when deciding whether to impose a
mandatory retirement age, and to a district court engaged in
reviewing an employer’s BFOQ defense. The evidence Con-
gress has considered, and the conclusions it has drawn there-
from, might be admissible as evidence in judicial proceedings
to determine the existence of a BFOQ for nonfederal employ-
ees. The extent to which these factors are probative would,
of course, vary depending at least on the congruity between
the federal and nonfederal occupations at issue. Indeed, the
need to consider the actual tasks of the nonfederal employees
and the circumstances of employment, in order to determine
the extent to which congressional conclusions about federal
employees in fact are relevant, would preclude the kind of
wholesale reliance on the federal rule that the City suggests.
See supra, at 9. Because in this case the evidence supports
no such finding of congressional intent to establish a BFOQ,
however, we decline to speculate on the manner in which a
different federal rule might affect nonfederal employment.

* Nor do we have any reason to believe that, when the City imposed its
mandatory retirement scheme in 1962, it was relying on a congressional
determination of any kind. The history of the civil service provision up to
that time reveals no congressional finding of an occupational qualification,
and in fact in 1962 the congressional sch remained completely volun-
tary. It was not until 1974 that Congress even rendered early retirement
mandatory. Indeed, the City pointed out to the Court of Appeals that it
instituted its mandatory retirement plan “more than a decade before the
federal government did likewise.” Answer of Appellant City to Petition
for Rehearing with Suggestion for Rehearing en Banc in No. 81-1965
(CA4), pp. 9-10.

6-18-85

The United States LAW WEEK

53 LW 4759

Ill

We accordingly reverse the Court of Appeals’ holding that
the federal retirement provision at issue in this case provides
an absolute defense inan ADEA action. | We remand to the
Court of Appeals for further proceedings consistent with this
opinion.

It is so ordered.

REX E. LEE, Solicitor General (JOHNNY J. BUTLER, Equal Employment
Opportunity Commission Acting Gen. Counsel, with him on the brief) for
petitioners; L. WILLIAM GAWLIK, Baltimore Assistant City Solicitor
(BENJAMIN L. BROWN, City Sol., and AMBROSE T. HARTMAN,
Dpty. City Sol., with him on the brief) for respondents.

No. 84-5743

BRIAN KEITH BALDWIN, PETITIONER v. ALABAMA

ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF ALABAMA

Syllabus
No. 84-5743. Argued March 27, 1985—Decided June 17, 1985

Alabama's 1975 Death Penalty Act (later repealed) required a jury that
convicted a defendant of any one of a number of specified aggravated
crimes to “fix the punishment at death.” However, the “sentence” fixed
by the jury was not dispositive, because the Act provided that “{nJot-
withstanding the fixing of the punishment at death by the jury, the
court, after weighing the aggravating and mitigating circumstances”
brought out at a required sentencing hearing, could refuse to accept the
death penalty and, instead, could impose a life sentence, or, after weigh-
ing such circumstances, “and the fixing of the punishment at death by
the jury,” could sentence the defendant to death. Petitioner was con-
victed under the Act of a specified capital offense, and the jury’s verdict
fixed his punishment at death. After conducting the required sentenc-
ing hearing and weighing the aggravating and mitigating circumstances,
the judge accepted the death penalty as fixed by the jury. The Alabama
Supreme Court ultimately affirmed the conviction and sentence, reject-
ing petitioner’s contention that the Act was facially unconstitutional.
The court held that even though the jury had no discretion regarding the
“sentence” it would impose, the sentencing procedure was saved by the
fact that it was the trial judge who was the true sentencing authority,
and he considered aggravating and mitigating circumstances before im-
posing sentence.

Held: Alabama’s requirement that the jury return a “sentence” of death
along with its guilty verdict did not render unconstitutional the death
sentence the trial judge imposed after independently considering peti-
tioner’s background and character and the circumstances of his crime.

(a) Although the Alabama scheme would have been unconstitutional
if the jury’s mandatory death “sentence” were dispositive, there is no
merit to petitioner’s contention that the trial judge’s sentence was un-
constitutional because the Act required the judge to consider, and accord
some deference to, the jury’s “sentence.” While the Act’s language did
not expressly preclude, and might seem to have authorized, the sentenc-
ing judge’s consideration of the jury’s “sentence” in determining whether
the death penalty was appropriate, the Alabama appellate courts have
interpreted the Act to mean that the sentencing judge was to impose a
sentence without regard to the jury’s mandatory “sentence.” More-
over, it was clear that the sentencing judge here did not interpret the
statute as requiring him to consider the jury’s “sentence,” because
he never described the “sentence” as a factor in his deliberations.

(b) Nor is there merit to the contention that a trial judge’s decision to
impose the death penalty must have been swayed by the fact that the
jury returned a “sentence” of death. Beck v. Alabama, 447 U. S. 625,
distinguished. The judge knew that determination of the appropriate
sentence was not within the jury’s province, and that the jury did not
consider evidence in mitigation in arriving at its “sentence.”

456 So. 2d 129, affirmed.

BLACKMUN, J., delivered the opinion of the Court, in which WHITE,
POWELL, REHNQUIST, and O'Connor, JJ., joined. BURGER, C. J’filed
an opinion concurring in the judgment. BRENNAN, J., filed a dissenting
opinion. STEVENS, J., filed a dissenting opinion, in which BRENNAN and
MARSHALL, JJ., joined.

JUSTICE BLACKMUN delivered the opinion of the Court.

Between 1976 and 1981, an Alabama statute required a
jury that convicted a defendant of any one of a number of
specified crimes “with aggravation” to “fix the punishment at,

death.” Ala. Code § 13-11-2(a) (1975).! The “sentence” ime>

posed by the jury, however, was not dispositive. Instead,
“{njotwithstanding the fixing of the punishment at death b
the jury,” §13-11-4, the trial judge then was to hear evi-
dence of aggravating and mitigating circumstances and, afte
weighing those circumstances, to sentence the defendant to
death or to life imprisonment without parole. i
This case concerns the constitutionality of the peculiar and
unusual requirement of the 1975 Alabama Act that the jury
“shall fix the punishment at death,” even though the trial
judge is the actual sentencing authority.2 The United
States Court of Appeals for the Eleventh Circuit ruled that
the scheme was facially unconstitutional. Ritter v. Smith,
726 F. 2d 1505, -1515-1517,. cert. ‘denied, —— U. S. ——
(1984). Shortly thereafter, however, the Supreme Court of
Alabama, with two dissenting votes, ruled to the contrary in

the present case. Ex Parte Baldwin, 456 So. 2d SO

138-139 (1984). We granted certiorari to resolve this signifi-
cant conflict. ——- U. S. —— (1984).

The facts are sordid, but a brief recital of them must be
made. Petitioner Brian Keith Baldwin, then 18 years of age,
escaped from a North Carolina prison camp on Saturday,

March 12, 1977. That evening, he and a fellow escapee, Ed- MA

ward Horsley, came upon 16-year-old Naomi Rolon, who was
having trouble with her automobile. The two forcibly took
over her car and drove her to Charlotte, N. C. There, both
men attempted to rape her, petitioner sodomized her, and

over her with the car, locked her in its trunk, and left her

the two attempted to choke her to death. They then =

there while they drove through Georgia and Alabama.
Twice, when they heard the young woman cry out, they
stopped the car, opened the trunk, and stabbed her repeat-
edly. On Monday afternoon, they stole a pickup truck,
drove both vehicles to a secluded spot, and, after again using
the car to run over the victim, cut her throat with a hatchet.
She died after this 40-hour ordeal.

Petitioner was apprehended the following day driving the
stolen truck. He was charged with theft. While in custody,
he confessed to the victim’s murder and led the police to her
body. He was then indicted for “robbery . . . when the vic-
tim is intentionally killed,” a capital offense, § 13-11-2(a)(2),
and was tried before a jury in Monroe County. At the close
of the evidence regarding guilt or innocence, the judge in-
structed the jury that if it found the petitioner guilty, “the
Legislature of the State of Alabama has said this is a situa-

‘The originating statute was 1975 Ala. Acts, No. 213, effective March 7,
1976. Act No. 213 was enacted in response to this Court’s decision in
Furman v. Georgia, 408 U. S. 238 (1972), and revised the State's death-
penalty statutes. Chapter 11 of Title 13 of the Alabama Code, as it there-
after stood, was repealed in its entirety and replaced by new death-penalty
provisions set forth in 1981 Ala. Acts, No. 81-178, effective July 1, 1981.
The repeal did not moot the present case because petitioner's offense was
committed and his sentence was imposed in 1977 while the 1975 Act was in
effect. See 1981 Ala. Acts, §§ 19 and 20, codified as Ala. Code, § 13A-5-57
(1982).

*Our own research has disclosed no other death-penalty statute cur-
rently in effect that requires the jury to return a death “sentence,” but
then has the judge make the actual sentencing decision. Indeed, as is
noted herein, Alabama has changed its death-penalty scheme and no longer
has the requirement.

53 LW 4760

The United States LAW WEEK

6-18-85

tion [in] which . . . the punishment would be death by elec-
trocution,” Tr. 244-245, and the jury therefore would be re-
quired to sentence petitioner to death. Jd., at 242. The
jury found petitioner guilty, in the terms of the statute, of
robbery with the aggravated circumstance of intentionally
killing the victim, and returned a verdict form that stated:
“We, the Jury, find the defendant guilty as charged in the
indictment and fix his punishment at death by electrocution.”
App. 4.
B
Under Alabama’s 1975 Death Penalty Act, once a defend-

ant was convicted of any one of 14 specified aggravated of-
fenses, see Ala. Code §13-11-2(a) (1975), and the jury re-
turned the required death sentence, the trial judge was
obligated to hold a sentencing hearing:

“(T]he court shall thereupon hold a hearing to aid the

court to determine whether or not the court will sen-

tence the defendant to death or to life imprisonment

without parole. In the hearing, evidence may be pre-

sented as to any matter that the court deems relevant to

sentence and shall include any matters relating to any of

the aggravating or mitigating circumstances enumerated

in sections 13-11-6 and 13-11-7.” §13-11-3.

The judge was then required to sentence the defendant to
death or to life imprisonment without parole:

“Notwithstanding the fixing of the punishment at
death by the jury, the court, after weighing the ag-
gravating and mitigating circumstances, may refuse to
accept the death penalty as fixed by the jury and sen-
tence the defendant to life imprisonment without pa-
role, which shall be served without parole: >r the court,
after weighing the aggravating and mitigacing circum-
stances, and the fixing of the punishment at death by the
jury, may accordingly sentence the defendant to death.”
§ 13-11-4.

{f the court imposed a death sentence, it was required to set
forth in writing the factual findings from the trial and the
sentencing hearing, including the aggravating and mitigating
circumstances that formed the basis for the sentence. [bid.
The judgment of conviction and sentence of death were sub-
ject to automatic review by the Court of Criminal Appeals,
and, if that court affirmed, by the Supreme Court of Ala-
bama. §§13-11-5, 12-22-150; Ala. Rules App. Proc. 39(c).
See Beck v. State, 396 So. 2d 645, 664 (Ala. 1981); Evans v.
Birtton, 472 F. Supp. 707, 718-714, 723-724 (SD Ala. 1979),
rev'd on other grounds, 628 F. 2d 400 (CA5 1980), 639 F. 2d
221 (CA5 1981), rev'd sub nom. Hopper v. Evans, 456 U. S.
605 (1982).

Following petitioner’s conviction, the trial judge held the
sentencing hearing required by $13-11-3. The State re-
introduced the evidence submitted at trial, and introduced
petitioner’s juvenile and adult criminal records, as well as
Edward Horsley’s statement regarding the crime. Peti-
tioner then took the stand and testified that he had “a hard
time growing up”; that he left home at the age of 13 because
his father did not like him to come home late at night; that he
dropped out of school after the ninth grade; that he made a
living by “street hustling”; that he had been arrested ap-
proximately 30 times; and that he was a drug addict. App.
8-10. At the conclusion of petitioner’s testimony, the trial
judge stated:

“Brian Keith Baldwin, today is the day you have in court
to tell this judge whatever is on your mind . . ., now is
your time to tell the judge anything that you feel like
might be helpful to you in the position that you find your-
self in. I want to give you every opportunity in the
world that I know about. . . . Anything you feel like you
can tell this Judge that will help you in your present posi-
tion.” Id., at 12.

Petitioner then complained about various aspects of his trial,
and concluded: “I ain’t saying I’m guilty but I might be guilty
for murder but | ain’t guilty for robbery down here. That’s
all I got to say.” Id., at 13.

The judge stated that “having considered the evidence pre-
sented at the trial and at said sentence hearing,” id., at
17-18, the court found the following aggravating circum-
stances: the capital offense was committed while petitioner
was under a sentence of imprisonment in the State of North
Carolina from which he had escaped; petitioner previously
had pleaded guilty to a felony involving the use of violence to
the person; the capital offense was committed while peti-
tioner was committing a robbery or in flight after the rob-
bery; and the offense was especially heinous, atrocious, or
cruel.?| The judge found that petitioner’s age—18 at the
time of the crime—was the only mitigating circumstance.
Id., at 18. He then stated:

“The Court having considered the aggravating circum-

stances and the mitigating circumstances and after
weighing the aggravating and mitigating circumstances,

it is the judgment of the Court that the aggravating cir-
cumstances far outweigh the mitigating circumstances
and that the death penalty as fixed by the jury should be
and is hereby accepted.” Jbid.

The Suprerne Court of Alabama eventually affirmed the
conviction and sentence. 456 So. 2d 129 (1984).‘ In his ar-
gument to that court, petitioner contended that the 1975 Act
was facially invalid. Tracking the reasoning of the Eleventh
Circuit in Ritter v. Smith, 726 F. 2d, at 1516-1517, he argued
that the jury’s mandatory sentence was unconstitutional be-
cause it was unguided, standardless, and reflected no consid-
eration of the particular defendant or crime, and that the
judge’s sentence was unconstitutional because it was based in
part upon consideration of the impermissible jury sentence
and was infected by it. The court rejected petitioner’s argu-
ments, holding that even though the jury had no discretion
regarding the “sentence” it would impose, the sentencing

1The sentencing judge found, as an additional aggravating factor, that
petitioner had been adjudged delinquent in juvenile proceedings after
being charged with kidnaping and rape. The Alabama Court of Criminal
Appeals ruled that the delinquency adjudication was not valid as an ag-
gravating circumstance, but held that the judge’s consideration of it was
harmless error. 456 So. 2d 117, 125-128 (1983), aff’d, 456 So. 2d 129 (Ala.
1984). That issue was not raised in the petition for certiorari here, and we
have no reason to consider it.

‘Petitioner’s conviction and sentence were affirmed initially by the Ala-
bama Court of Criminal Appeals, 372 So. 2d 26 (1978), and by the Supreme
Court of Alabama, 372 So. 2d 32 (1979). This Court, however, 448 U. S.
903 (1980), vacated and remanded the case for reconsideration in the light
of Beck v. Alabama, 447 U. S. 625 (1980), which held unconstitutional a
clause in Alabama’s 1975 Act that precluded the jury from considering
lesser-included noncapital offenses. On remand, the Court of Criminal
Appeals reversed the judgment of conviction on the basis of Beck. 405 So.
2d 699 (1981). After this Court ruled that due process requires a lesser-
included offense instruction only when warranted by the evidence, Hopper
v. Evans, 456 U. S. 605 (1982), the Court of Criminal Appeals granted re-
hearing, rescinded its earlier reversal, and reaffirmed petitioner’s convic-
tion and sentence. 456 So. 2d 117 (1983). The Supreme Court of Ala-
bama affirmed that decision, 456 So. 2d 129 (1984), and it is that judgment
which we now review.

6-18-85

The United States LAW WEEK

53 LW 4761

procedure was saved by the fact that it was the trial judge
who was the true sentencing authority, and he considered ag-
gravating and mitigating circumstances before imposing sen-
tence. 456 So. 2d, at 139.5

If the jury’s “sentence” were indeed the dispositive sen-
tence, the Alabama scheme would be unconstitutional under
the principles announced in Woodson v. North Carolina, 428
U. S. 280 (1976) (plurality opinion), and Roberts (Stanislaus)
v. Louisiana, 428 U. S. 325 (1976) (plurality opinion). See
also Roberts (Harry) v. Louisiana, 431 U. S. 633 (1977). In
Woodson, the Court held that North Carolina’s sentencing
scheme, which imposed a mandatory death sentence for a
broad category of homicidal offenses, violated the Eighth and
Fourteenth Amendments in three respects. First, such
mandatory schemes offend contemporary standards of de-
cency, as evidenced by the frequency with which jurors avoid
the imposition of mandatory death sentences by disregarding
their oaths and refusing to convict, and by the consistent
movement of the States and Congress away from such
schemes. 428 U.S., at 288-301. Second, by refusing to
convict defendants who the jurors think do not deserve the
death penalty, juries exercise unguided and unchecked dis-
cretion regarding who will be sentenced to death. Jd., at
302-303. Third, such mandatory schemes fail to allow par-
ticularized consideration of the character and record of the
defendant and the circumstances of the offense. Jd., at
303-305. Alabama’s requirement that the jury impose a
mandatory sentence for a wide range of homicides, standing
alone, would suffer each of those defects.

The jury’s mandatory “sentence,” however, does not stand
alone under the Alabama scheme. Instead, as has been de-
scribed above, the trial judge thereafter conducts a separate
hearing to receive evidence of aggravating and mitigating
circumstances, and determines whether the aggravating
circumstances outweigh the mitigating circumstances. The
judge’s discretion is guided by the requirement that the
death penalty be imposed only if the judge finds the ag-
gravating circumstance that serves to define the capital
crime—in this case the fact that the homicide took place
during the commission of a robbery—and only if the judge

‘The Court of Criminal Appeals, as has been noted in the text, must
review the decision of a trial court that imposes the death penalty,
§ 12-22-1590, and if that court affirms the sentence, certiorari review by the
Supreme Court of Alabama is automatic. Ala. Rule App. Proc. 39(c).
Both appellate courts “review . . . the aggravating and mitigating circum-
stances found in the case by the trial judge” and independently weigh those
circumstances to determine whether the imposition of a death sentence is
appropriate. Jacobs v. State, 361 So. 2d 640, 647 (Ala. 1978) (Torbert,
C. J., concurring in part and dissenting in part), cert. denied, 439 U. S.
1122 (1979); see also Beck v. State, 396 So. 2d. 645, 664 (Ala. 1981). In
reviewing petitioner's sentence, neither appellate court gave any indication
of including the jury’s “sentence” in the weighing. In describing its re-
view of petitioner’s sentence, the Court of Criminal Appeals stated:

“We have reviewed the aggravating and mitigating circumstances set

out in the record and the trial court’s findings relative to those circum-
stances. . . . After review of the hearing on aggravating and mitigating cir-
cumstances, we find no error on the part of the trial court in reaching the
conclusion that the aggravating circumstances far outweigh the mitigating
circumstances in this case. The sentence fits the crime.” 372 So. 2d,
at 32.
Upon reaffirming petitioner’s conviction in light of Hopper v. Evans, 456
U. S. 605 (1982), the Court of Criminal Appeals again noted its obligation
to weigh independently the aggravating and mitigating circumstances, and
found that petitioner’s death sentence was appropriate. 456 So: 2d, at
128. The State Supreme Court also found that the “aggravating circum-
stances greatly outweighed the mitigating circumstances.” 456 So. 2d,
at 140.

finds that the definitional aggravating circumstance, plu
any other specified aggravating circumstance,’ outweigh
any statutory and nonstatutory mitigating circumstances.
§13-11-4. Petitioner accordingly does not argue that the
judge’s discretion under §13-11—4 is not “suitably directed
and limited so as to minimize the risk of wholly arbitrary and
capricious action,” Gregg v. Georgia, 428 U.S. 158, 189
(1976) (opinion of Stewart, POWELL, and STEVENS, JJ.).
Nor is there any issue before this Court that the 1975 Act did
not allow “the type of individualized consideration of mitigat-
ing factors” by the sentencing judge that has been held
constitutionally indispensable in capital cases.’ Lockett 'v.
Ohio, 438 U.S. 586, 606 (1978) (plurality opinion); see also
Eddings v. Oklahoma, 455 U.S. 104 (1982); Woodson v.
North Carolina, 428 U. S., at 304 (plurality opinion).
Petitioner’s challenge to the Alabama scheme rests instead
on the provision of the 1975 Act that allows the judge to
weigh “the aggravating and mitigating circumstances, and
the fixing of the punishment at death by the jury” in de-
termining whether death is the appropriate sentence.
§13-11-4. This Court has stated that a death sentence
based upon consideration of “factors that are constitutionally
impermissible or totally irrelevant to the sentencing process,
such as for example the race, religion, or political affiliation of
the defendant,” would violate the Constitution. Zant v. Ste-
phens, 462 U. S. 862, 885 (1983). Relying upon Zant, peti-
tioner contends that, because the jury's mandatory “sen-
tence” would be unconstitutional standing alone, it is an
impermissible factor for the trial judge to consider, as the
statute appears to require, in the sentencing process. That
argument conceivably might have merit if the judge actually
were required to consider the jury’s “sentence” as a recom-
mendation as to the sentence the jury believed would be ap-
propriate, cf. Proffitt v. Florida, 428 U. S. 242 (1976), and if
the judge were obligated to accord some deference to it.
The jury’s verdict is not considered in that fashion, however,
as the Alabama appellate courts’ construction of the Act, as
well as the judge’s statements regarding the process by
which he arrived at the sentence, so definitely indicate.

Ss
Ss

*See §13-11-6. The 1975 Act required the judge to weigh aggravating
circumstances specified in §13-11-6 against mitigating circumstances.
The Alabama courts interpreted the Act, however, to require the judge to
find the presence of the § 13-11-2(a) definitional aggravating circumstance
(in other words, to agree with the jury's finding that the defendant is guilty
of the offense charged in the indictment) before weighing any § 13-11-6 ag-
gravating circumstances against mitigating circumstances. Ex Parte
Kyzer, 399 So. 2d 330 (Ala. 1981). Generally, the definitional aggravating
circumstances of §13-11-2(a) have counterparts in §13-11-6. Where
there is no counterpart, the judge must find the definitional aggravating
circumstance or no death sentence can be imposed, even though § 13-11-6
aggravating circumstances outweigh mitigating circumstances. 399 So.
2d, at 337.

‘In his statement of facts, petitioner asserts that the sentencing judge
limited his consideration of mitigating circumstances to those specified by
§ 13-11-7, in violation of Lockett v. Ohio, 438 U. S. 586 (1978) (plurality
opinion). That issue was not addressed by the Supreme Court of Alabama
in the decision under review, and was not raised in the petition for certio-
rari. We have no reason to consider the issue here. We note, however.
that in its first review of petitioner's sentence, the Court of Criminal Ap-
peals held that petitioner “was given the opportunity to present any miti-
gating circumstance” (emphasis supplied), and that the 1975 Act did not
preclude consideration of any aspect of petitioner’s character or of the cir-
cumstances of the offense. 372 So. 2d, at 32. We already have noted that
the sentencing judge asked petitioner to “tell the judge anything that you
feel like might be helpful to you in the position you find yourself in." App.
12. Petitioner’s counsel three times asked petitioner while he was on the
stand if there was “anything else you would like for the judge to know or to
be able to tell him at this point?” /d., at 10-11. Finally, at the conclusion
of petitioner’s testimony, the judge asked petitioner's counsel if he had
“anything else that you might be able to offer in the way of mitigating cir-
cumstances.” /d., at ld.

ONS Rp eeener serene sane

1490 45 FEDERAL REPORTER, 3d SERIES

to, the considerations of comity and federal-
ism which would ordinarily preclude federal
review of procedurally defaulted issues no
longer apply. Cooper v. Wainwright, 807
F.2d 881, 886 (11th Cir.1986). We have said
that “a state court’s decision to raise and
answer a constitutional question swa sponte
will ... permit subsequent federal habeas
review.” Id.

[2] In Horsley’s direct appeal, the Ala-
bama Court of Criminal Appeals stated:

“We have reviewed the aggravating and
mitigating circumstances set out in the
record and the trial court’s findings rela-
tive to those circumstances. The appellant
was given an. opportunity to present any
mitigating circumstances he desired. Ala-
bama’s capital felony act ... fully com-
ports with Lockett v. Ohio, 488 U.S. 586
[98 S.Ct. 2954, 57 L.Ed.2d 973] ... (1978),
in that it does not preclude from consider-
ation as a mitigating factor ‘any aspect of a
defendant’s character and record and any
of the circumstances of the offense that the
defendant proffers as a basis for a sen-
tence of less than death.’” —

Horsley, 374 So.2d at 375. In this case, we
conclude that the Alabama courts, even
though they did not have to, raised and
answered the Lockett issue. As a result,
Horsley’s claim is properly before us for a
decision on the merits.

[3] We review Lockett-Hitchcock claims
by matching the records in the case under
consideration with the Hitchcock record.
Hargrave v. Dugger, 832 F.2d 1528, 1533
(11th Cir.1987) (in banc). Relevant factors
may include: 1) statements made by the
sentencing judge; 2) comments made by the
prosecutor and defense counsel; 3) the miti-
gating evidence presented; and 4) the state
law at the time of sentencing. E.g., Knight
v. Dugger, 863 F.2d 705, 708-10 (11th Cir.
1988).

The Supreme Court noted that the trial
judge in Hitchcock expressly weighed, in im-
posing sentence, only those mitigating fac-
tors enumerated in the death penalty statute:

8. Because the Alabama sentencing scheme pro-
vides no role for the jury in weighing the aggra-

[T]he sentencing judge found that ‘there
[were] insufficient mitigating circum.
stances as enumerated in Florida Statute
. to outweigh the aggravating circum.
stances.’ He described the process by
which he reached his sentencing judgment
as follows: ‘In determining whether the
defendant should be sentenced to death or
life imprisonment, this Court is mandated
to apply the facts to certain enumerated
“aggravating” and “mitigating” circum-
stances.’
Hitchcock, 481 U.S. at 398, 107 S.Ct. at 1824
(record citations omitted; emphasis in origi-
nal). In Hitchcock, the Court also consid-
ered that the jury was instructed to consider
only those mitigating circumstances that
were listed in the statute. Based upon
these facts, the Court held that the sentenc-
ing proceeding in Hitchcock had not complied
with Lockett.

The Alabama death penalty statute in ef-
fect at Horsley’s sentencing permitted the
defendant to present evidence on any matter
that the court deemed relevant to the sen-
tence. Ala.Code § 13-11-8. Horsley does
not contend that the trial court denied him
the opportunity to spresent mitigating evi-
dence.

At the sentencing hearing, the court said
to Horsley:

Edward, this is your day in court to tell me
what you have in your own behalf in the
way of mitigating the sentence that has
been imposed on you and I want to give
you an opportunity to tell me whatever you
feel like might be helpful to you to get this
sentence reduced from electrocution to life
imprisonment. Do you want tell me any-
thing else other than what you've been
asked about?

I am giving you now the opportunity to tell
me anything in your whole life which you
feel like might be helpful to you to get this
sentence reduced....

Thus, the sentencing court invited Horsley to

present’ any mitigating evidence he desired.
Implicit within this invitation is the notion

vating and mitigating circumstances, this factor
is not relevant to our inquiry,

Pat TR DARE As I ee a

Ae
oh
ay
At

#
Xe

1488

lollowing Horsley’s capital conviction, a sen-
tencing hearing was conducted before the
court. After the hearing, the trial court
“having considered the evidence presented at
the trial and at said sentence hearing,” en-
tered a sentence order finding the following
aggravating circumstances: 1) the capital of-
fense was committed by a person under sen-
tence of imprisonment; 2) the defendant was
earlier convicted of a felony involving rob-
bery, in the course of which a police officer
was shot; 3) the capital felony was commit-
ted while defendant was engaged in commis-
sion of or flight after committing a robbery;
and 4) the capital felony was especially hei-
nous, atrocious or cruel. The court found
Horsley’s age to be a mitigating circum-
stance.’ The trial court then found that the
aggravating circumstances “far _out-

weigh[ed]” the mitigating circumstances and-

sentenced Horsley to death.

sentence of death, it was required to set forth in
writing findings of fact from the trial and the
sentencing hearing, including at least one or
more of the aggravating circumstances enumer-
ated in section 13-11-6 and any of the statutory
mitigating circumstances enumerated in section
13-11-7 which it found insufficient to outweigh
the aggravating circumstances. Id.

After sentencing, the Court of Criminal Ap-
peals was required to review the decision of the
trial court, and if that court affirmed, certiorari
by the state supreme court was automatic.
§§ 13-11-5, 12-22-150; see Baldwin, 472 U.S. at
379 n. 5, 105 S.Ct. at 2731'n. 5. “Both appellate
courts ‘review ... the aggravating and mitigating
circumstances found in the case by the trial
judge’ and independently weigh those circum-
stances to determine whether the imposition of a
death sentence is appropriate.’ Jd. (emphasis
added) (citations omitted),

The 1975 death penalty statute was repealed in
its entirety in 1981. It remains effective, howev-
er, for crimes committed while it was in force.
See 1981 Ala.Acts § 20, codified as Ala.Code,
§ 13A-5-57 (1982).

2. The trial court stated:
The Court now considers mitigating circum-
stances as described in Title 15, Section 342(9)
of the 1940 Code of Alabama, as amended:

(a) The court finds the only mitigating circum-
stance would be the age of the defendant at the
time of the commission of the crime, to-wit,
nineteen,
Horsley v. State, 374 So.2d 363, 375 (Ala.Cr.App.
1978), affd, Ex parte Horsley, 374 So.2d 375
(Ala.1979) (emphasis added).

3. Horsley’s conviction and sentence were af-
firmed on direct appeal. Horsley v. State, 374

45 FEDERAL REPORTER, 3d SERIES

In 1989, after challenging the conviction
and sentence in state court," Horsley peti-
tioned for writ of habeas corpus in the feder-
al district court. The district court entered a
memorandum order in December 1991, deny-
ing certain claims and granting an evidentia-
ry hearing on four specified claims.‘ After a
four-day evidentiary hearing, the district
court denied all claims.

On appeal, Horsley raises two claims that
merit discussion: 1) the claim that his sen-

tence violated the Eighth Amendment be-

cause the trial judge in this case expressly
limited his consideration of mitigating cir-
cumstances to those enumerated in the Ala-
bama death penalty Statute; and 2) the claim
that his counsel provided ineffective assis-
tance at sentencing by presenting no expert
testimony to demonstrate Horsley’s alleged
vulnerability to domination by his co-defen-
dant Baldwin.5

So.2d 363 (Ala.Cr.App.1978), affd, Ex parte
Horsley, 374 So.2d 375 (Ala.1979). The Su-
preme Court vacated the judgment and remand-
ed in the light of Beck v. Alabama, 447 U.S. 625,
100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Horslev
v. Alabama, 448 U.S. 903, 100 S.Ct. 3043, 65
L.Ed.2d 1133 (1980). The Adabama Supreme
Court remanded to the court of criminal appeals
which reversed. Horsley v. State, 409 So.2d
1347 (Ala.Crim.App.1981). The U.S. Supreme
Court vacated and remanded on authority of
Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049,
72 L.Ed.2d 367 (1982). Alabama v. Horsley, 457
U.S. 1114, 102 S.Ct. 2921, 73 L.Ed.2d 1326
(1982). On remand, the conviction and sentence
were once again upheld, Horsley v. State, 476
So.2d 623 (Ala.Cr.App.1983), affd, Ex parte
Horsley, 476 So.2d 626 (Ala.1985), cert. denied,
Horsley v. Alabama, 475 U.S. 1031, 106 S.Ct.
1239, 89 L.Ed.2d 347 (1986). In 1986, Horsley
filed a state coram nobis petition which was
denied. Horsley v. State, 527 So.2d 1355 (Ala.
Crim.App.1988), cert. denied, 527 So.2d 1355
(Ala. 1988), cert. denied, 489 U.S. 1059, 109 S.Ct.
1328, 103 L.Ed.2d 596 (1989),

4. The district court granted an evidentiary hear-
ing on the following ineffective-assistance-of-
counsel claims: 1) failure to object to an alleged
Swain violation; 2) failure to object to excessive
security at trial; 3) failure to present psychiatric
evidence at sentencing; and 4) failure to prepare
Horsley as a witness.

5. Horsley raises other claims in this appeal: 1)
ineffective assistance of counsel for failure to
object to an alleged violation of Swain v. Ala-
bama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d
759 (1965); 2) ineffective assistance of counsel
for failure to object to an alleged violation of
Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct.

eieaahs

eee
7 : a me 2 403 aw Dts
Stee ae ae nen eee

1 BRO Set ae RRR gE age og ot aa ee mini te saps BOS Se abe Sage
“ . RE ge - eae PERS ee

SRD A RRO Cahn SH yee

HORSLEY v. STATE OF ALA.

1489

Cite as 45 F.3d 1486 (11th Cir, 1995)

CONSIDERATION OF NONSTATUTORY
MITIGATING EVIDENCE

Horsley argues that the state trial judge
expressly limited his consideration of mitigat-
ing circumstances to those set out in the
Alabama death penalty statute in force at the
time of Horsley’s conviction. As a result, he
contends the trial judge considered only
Horsley’s youth in mitigation and excluded
other mitigating circumstances that were be-
fore him. Thus, Horsley claims that he was
sentenced to death in violation of Hitchcock
v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95
L.Ed.2d 347 (1987).6 Horsley bases this ar-
gument on the similarity between the trial
court’s order in this case and the trial court’s
order in Hitchcock.

The district court held no evidentiary hear-
ing on this issue. Based upon the similarity
between the sentencing order in this -case
and the order in Hitchcock, the district court
said, in a preliminary comment, that the pro-
cedure “does not appear to satisfy Hitch-
cock.” The court, however, further conclud-
ed that “no evidentiary hearing is required
on this issue as the merits can be considered
without further evidence. Whether this
claim is procedurally barred is a matter that
will be addressed in the Court’s final Order
following the evidentiary hearing.” In its
final order, the court held that, because
Horsley failed to raise this claim on direct
appeal or on coram nobis and because he had
failed to show cause and prejudice, the claim
was procedurally barred.

On appeal, Horsley contends that the dis-
trict court, in the initial order, made findings
of fact and held that there was.a Hitchcock

1770, 20 L.Ed.2d 776 (1968); 3) ineffective assis-
tance of counsel for failure to challenge alleged
under-representation of blacks in the grand and
petit jury selection processes in violation Duren
v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58
L.Ed.2d 579 (1979); and 4) a claim that Horsley
was entitled to funds for mental health experts.
We affirm the district court’s rulings: the claims
are procedurally barred or wholly without merit.

6. In Hitchcock, the Court repeated its earlier
holding that ‘‘in capital cases, the sentencer may
not refuse to consider or be precluded from
considering any relevant mitigating evidence.”
Hitchcock, 481 U.S. at 394, 107 S.Ct. at 1822
(citing Skipper v. South Carolina, 476 U.S. 1, 106
S.Ct. 1669, 90 L.Ed.2d 1 (1986); Eddings v.

error.’ We disagree. When read in the
context of case law on procedural default, the
district court’s comments seem to be prelimi-
nary and passing in nature. The Supreme
Court has held that, “[uJnless a habeas peti-
tioner shows cause and prejudice, a court
may not reach the merits of ... procedurally
defaulted claims in which the petitioner failed
to follow applicable state procedural rules in
raising the claim.” Sawyer v. Whitley, —
U.S. ——, —, 112 S.Ct. 2514, 2528, 120
L.Ed.2d 269 (1992). We also have held that
a federal habeas court “will not” consider an
issue that is procedurally barred unless the
petitioner can show cause and prejudice.
Amadeo v. Kemp, 816 F.2d 1502, 1505 (11th
Cir.1987). Given this legal background, we
conclude that the district court quite proper-
ly held in abeyance ruling on the merits of
the claim until the procedural default issue
_was resolved. ;

First, we address the procedural bar.
Horsley argues that the district court erred
in finding the Hitchcock claim to be proce-
durally barred. He does not dispute that he
never directly presented the issue on appeal
or in collateral proceedings; nor does he
contend that his collateral attacks in the
Alabama courts in any way raised this claim.
Instead, he argues that this claim is not
procedurally defaulted because the Alabama
Court of Criminal Appeals swa sponte raised
and answered the question of whether the
sentencing court’s consideration of mitigating
evidence complied with requirements of
Lockett. We agree.

[1] When a state court decides a constitu-
tional question, even though it does not have

Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71
L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586,
98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)). A Hitch-
cock violation is based upon a Lockett violation,
and we have held that Lockett is to be applied
retroactively. Hargrave v. Dugger, 832 F.2d
1528, 1533 (11th Cir.1987) (in banc).

7. Horsley contends that the clearly erroneous
standard of review applies to the district court’s
factual findings on the Hitchcock violation. But
for Hitchcock purposes, the district court, as
noted above, held no evidentiary hearing, made
no factual findings, and never resolved the Hitch-
cock issue on the merits. Accordingly, our re-
view is plenary. See Abdi v. Georgia, 744 F.2d
1500, 1503 n. 5 (11th Cir.1984).

HOWARD, Aaron Julius, black, 19, hanged at Tuskegee, AL, on 11-3-1922.

AA tick EB ist.9 G rag PTO ra

ade Ahitth at sfoh, eb. Ag $tliwo Kownad.

Q thoek PBn2 1S Ch bap ih, Hey. F.
me Kas by a Ak tere, ery poe
Sig ee t Boots : Ade Se gf

"ade ae fie 2
= oil © leaua, Ox IS CL
OVve, “Zi

854 34 SOU

(137 Ala. 60)

HUDSON et al. Vv. STATE.
(Supreme Court of Alabama. June 18, 1903.)

ROBBERY—JOINT INDICTMENT — sEVERANCE—

TI).E FOR APPLICATION — TRIAL

TIONS—TIME—WITNESSES — EXAMINATIO
TION Sg PIL ATORS—DECLARA TIONS

Liule of Practice 32 (Code 1896, p-

ing that where two are jointly in-

f severance shall be deemed

at latest when the court

sets a
asked on the day of
discretion of the court.

2. Acts {S9U-Y1, P- 5G1, relating to Jefferson
county, expressly provide that, where two or
more defendants are tricd together, each is eD-
titled to but tive peremptory challenges.

3. An aflirmative auswer by @ witness to @
question as to whether he had_ beet
could not be objected to as being a co
the objection should have been made to

question.

4, Witness stated on his direct examination
that he bad been robbed of a certain amot

money taken from his person and
ensh drawer. On cross-examination

that he could not state the exact ami
from the cash drawer, but gathered it ip
his books. Held,
fendant i] himvelf of the objection
he best evidence.
a witness
having called for @& part
of the witness in repor
i the state in r

general w

ss-examining

might ca ; nversation.

G. After de tion for robbery
the discre-
tion of the court to refuse a request by de
ant to speak privately to the witness before
examination, he not having had oppor

had called a witness, ithin

do so before.

7. Where there had been introduced prima
facie evidence suflicient to establish a cone
spiracy between defendants to commit the rob-
bery for which they were jointly indicted, tes-
timony of one of them detailing the circum-
stances of the crime was properly allowed.

8. The testimony of one of the d
jointly indicted for robbery was not 0
ble as a declaration to a third person.

Appeal from Criminal Court, Jefferson

County; Danl. A. Greene, Judge.

Will Hudson and others, jointly jndic
were convicted of robbery, and appeal.

firmed.

Upon the introduction of all the evidence
the defendants requested the court to give
to the jury the following written charges,
and separately excepted to the court’s re-
fusal to give each of them as asked:
The court charges the jury that the decla-
ration of Abe Williams that Will Hludson
said to Will Jones, ‘po him like we di
oflicer,’ this declaration is excluded from your
consideration 80 far as it affects the guilt
or innocence of defendants Hudso
Jones. (2) I charge you, gentlemen of the
jury, to exclude as evidence the dec
affect the

of Abe Williams so far as it may
ruilt or innocence of Will Hudson

Jones, unless said declaration is corrobor
by evidence sufficient to warrant the con-
viction of defendants Jones and Hudson be-

yond a reasonable doubt.”

punt takeD

Robert L. Leatherwood, for appellant.
Massey Wilson, Atty. Gen., for the State.

HARALSON, J. 1. The defendants, Hnd-
gon, Williams and Jones, were jointly in-
dicted with two others, Bryant and Lee, for
robbery. On their arraignment ‘in court, on
the 9th of January, 1903, the two latter
moved the court to grant them a severance
of trial from the other defendants, which
motion the court granted and ordered them
to be tried separately from the others. The
other defendants, Yudson, Williams and
Jones, did not move for a severance, but up-
on being duly arraigned, each pleaded not
guilty to the indictment, and the 21st of
January, 1903, was set for their joint trial.
On that day, the state having announced
ready, these defendants demanded a sever
ance. The pill of exceptions recites: ‘The
court having ascertained that all of said de-
fendants were duly arraigned in open court
on January” 9th, 19038, though they had not
employed nor were represented by counsel] at
the time, and each of said defendants plead-
ed not guilty, and made no demand for &
severance at that time, nor at any subse
quent time to the present time, the court re-
fused to grant the severance of said |defend-
ants] * :* * and to this action of the
court, the defendants excepted.” In this rul-
ing there was no error. Any further sever-
ance after the first, was 4 matter of dis-
cretion with the court.—Rule 32, Pp. 1200,
Code 1896; Givens V. State, 109 Ala. 39, 19
South. 974; Malachi Vv. State, 89 Ala. 1384,
8 South. 104.

2. The defendant, Abe Williams, after he
had exhausted his five peremptory challenges,
offered to challenge another, claiming that he
was entitled to more than five challenges.
When two or more defendants are tried to-
gether, each is entitled, under the statute for
Jefferson county, to five peremptory chal-
lenges and no more.—Acts 1890-91, PD. 561;
Malachi V. State, supra.

3, John B. Messer, the party alleged to
bave been robbed, examined as a witness by
the state, testified that on Friday night,
January 2d, 1903, he was robbed of certain
personal property such as is described in the
indictment. Yhis statement was made in
answer to a question by the solicitor, asking
him “whether or not he had ever been rob-
ped.” No objection was made to the ques-
tion when asked, but after the witness had
answered it. the defendant objected on the
ground that the answer was a conclusion of
the witness, and moved to exclude it, which
the court declined to do. The objection, if
good at all, came too late. It should have
been made when the question was asked.
Downey VY. State, 115 Ala. 108, 22 South. 479.

4, This witness had testified on his direct
examination to the exact amount of money
of which he had been robbed,—of money
taken from his person and from his cash
drawer in his presence. On the cross by

‘ hs} 1] : :
| 3» WALY/ blacks \Rangda at
Pfc y, Birmingham, Alae, Auge 7, 1903.

THERN REPORTER. (Ala.

defendant, he stated that he could not state
the exact amount of money taken from the
eash drawer, but he gathered it in a general
way from the salesbook. The defendant ob-
jected on the ground that the books were the
best evidence of the amount taken. The ob-
jection on this ground was not available.

5. The witness on his cross, was asked by
defendant, what report he made to the police
office, and what description he gave of the
man who asked for the handkerchief, which
he proposed to buy from the witness, when
he came into his store. He answered that
he reported the robbery, and described the
man who first came into the store, as one
having on a silk-faced coat. On rebuttal, the
solicitor asked the witness, to state all the
conversation had at the police office, called
for by defendant, and what other description
he gave than that asked for by defendant,
and for all the conversation asked for by
defendant. The defendant interposed a gen-
eral objection to this evidence, which was
overruled, and the witness was allowed to
answer. The defendant having called for a
part of a conversation had by the witness
with the police officers, the court committed
no error in allowing the state to call for all
that was said by the witness at the time.
Davis v. State, 92 Ala. 20, 9 South. 616.

6. As ‘Alice Ware, a witness for defend-
ants, was getting in the witness chair, de-
fendants’ counsel for Hudson and Jones stat-
ed that he had not had an opportunity to
talk to the witness, and asked to be allowed
to speak to her privately before examining
her, but the court declined to allow him to
do so. ‘Fhis was a matter within the dis-
eretion of the court, and there does not ap-
pear to have been any abuse of its discretion.

7. Abe Williams, one of the defendants,
testifying in his own behalf, stated that he,
Will Jones and Will Hudson all participated
in the robbery, and that the statement of
Mr. Messer as to how the robbery occurred
was correct; that these two defendants came
to his house on Friday night, about 6:30
o’clock, and asked him to come to their house
that night, and they would go hunting; that
he went there, and they had pistols and
guns; that they went towards Avondale and
stopped, and Will Hudson said he was going
to have some money, and handed witness a
gun and fifty cents, and told him to go to
Messer’s store and get a handkerchief and
find out where the cash drawer was; that
witness said, “No, he would not,” but they
said they would kill him, and Tludson said
to Jones, “Do him like we did the oflicer,”
and that through fear, he went in and did
as Mr. Messer had testified; that witness
had the big pistol, Hudson the smaller one
and Jones the gun,—such as the evidence
showed they had. ‘The other defendants,
Hudson and Jones, interposed no objection
to this testimony of Williams as it was call-
ed out.

At this point, both sides announced that

the evidence had closed, and the court ad-
journed until the following morning, and all
the witnesses were discharged from further
attendance upon the court, with the privilege
of allowing the defendants to introduce tes-
timony next morning on one point,—-as to the
length of time it would take a freight train
to go from Mobile to Birmingham. On the
following morning, the court allowed evi-
dence on this point. Following this, the de-
fendants, Hudson and Jones, objected to all
the testimony of Williams, given the evening
before, on grounds, “that the declarations of
a co-conspirator to charge his fellows must
be concomitant with the principal act and so
connected with it as to constitute a part of
the res geste”; and that, ‘ta co-conspirator
cannot be convicted upon the testimony of an
accomplice unless such evidence is corrobo-
rated by the evidence tending to connect him
with the principal offense; and that the cor-
roboration is not suflicient, if it merely shows
that the offense was committed and the cir-
cumstances thereof,” which objections were
overruled. They also objected to the testi-
mony of said witness,—“that Hudson said, to
Jones, ‘Do him like we did the oflicer,’’’ on
the ground that it sought to connect them
with an offense for which they were not on
trial, Which objection was also overruled, the

said defendants reserving an exception to

each of these rulings.

There had been introduced direct and cir-
cumstantial evidence prima facie suflicient to
establish the existence of a conspiracy be-
tween the defendants to commit the crime,
in which case the evidence of the witness,
Williams, as for this objection, was properly
allowed.—Hunter v. State, 112 Ala. 77, 21
South. 65; Malachi v. State, 89 Ala. 134, 8
South. 104. What the witness testified to,
were not his declarations to a third person,
sought to be introduced as to the commission
of the offense, but was his testimony to that
effect, delivered on the stand of his own
motion, and without objection on the part
of his codefendants.

Irrom what bas been said, it will appear
that the two charges requested by defendant
were properly refused.

Affirmed.

(187 Ala. 627)

RUSSELL v. HUNTSVILLE RY., LIGHT
& POWER CO.

(Supreme Court of Alabama. June 18, 1903.)

STREET RAILWAYS — KILLING DOG — SUFFI-
CIENCY OF COMPLAINT—RESIDENCE OF DE-
FENDANT—PLEA IN ABATEMIENT—JUDICIAL
NOTICE — JURISDICTION OF NOTARY — IN-
STRUCTIONS.

1. A complaint in an action against a street
railway for the killing of a dog, which averred
that defendant, while operating its railway,
through its agents, ‘did carelessly and negli-
gently run over and kill” plaintiff's dog, suffi-
ciently alleged negligence on the part of de-
fendant.

Saif soe 1 PO PRR EF et Syoibe, e aseoehe ae =) atid waa ny ge ag td ie zi Hh weongeee erage: SEE canara sirmtaricine aah a. qeonans
Ala.) RUSSELL vy. HUNTSVILLE RY., LIGHT & POWER CO. 855

IRVIN, Percy, and MIMS, Isaac, blacks, elec. Alae (Lowndes) 3-11-19 32,

PRES YS. ae sae
a? te rh die
¥

seigeconvention here,
itqesident a lengthy peti-

“Sent declaring many
Pd to accept scrap iron
@-reby have “prevented
aqvaluable raw materials
i}iehn excellent investment

a credit policy, if con-
Mion said, “will prevent
stof the employment of

sands of men who

ts employed In the ma-

industry. oe
“4 policy, if continued,
on the tron ore re-
ntry, while valuable
& _ permitted — to be
tase away, and will consti-
ty to the national policy

asserted that approx-
tons of scrap were
Fnutacture of steel in
dnis use conserved ap-
10,000 tons of natural
form of fron ore and
i single year. It added
ase of SCrap was con-
#ron ore in the Lake
vagwould be exhausted by

eige Institute expressed

appreciation of the
* bgram already enacted
SES, and expressed hope
iments would further
Mgiies for the scrap jron

ad ;

mia pledge that the in-
hie: dertake a program to
picémnt for the 200,000
abe -aemployed In the scrap
Lise Py ustry.”” {

: «

ee
ERGH NOW
K Hs a
Mthe child who was
vk bed in the darkness
met newspapermen
ecting his own ne-

From Page 1)
by Col. Lindbergh as

i Under Serutiny

, i} James M, Curley said
! pagemed by s New York
ek declined to name that
aedy had been returned to
i kidnupers after the
fd. not to notify police

4pltop home stated flat-

“Sie homes and said the
ee ESathe report. .
neat Red) Johnson, sea-
“ftahe Lindbergh baby’s
Baas fill being detained at
Sips were asked if any
yn found who placed
Agar Hopewell the night
SaThe answer was“‘no.”
ted a statement they

‘gse “our investigation of
d incomplete.”
eshte greeted a question put
-anoon press conference—
iy ad located any hide-out
Ange of the Lindbergh
(490) Sed have been used by the
ah panpotting tue crime.

aval for the first time by

“sifingerprints had been

| picked up four feet
Akidnapers had left the
however, were
Wit identification when
aonterence answer Said.
nra Falls, N. Y¥., said
rst of New Jersey State
searching for J. Nor-
promoter, and a
14 aah o named “Archie.” They
wat escape tn wanted to
AeMe@pouts of the palr at tl
vping. . _
Conn., police appeared

ge inidnaping. A woman had
“Biim and two companions
by 10 months ago,

Mockings
iCause Runs

QPETTE DONNELLY
‘ were talking about

contractor

UHL Gi EGR Lid

CAVE FROM CHAIR

Commuted; Mims And

Irwin Must Die

Commuting to life imprisonment the
death sentence of Robert Strickland,
Gov. Miller yesterday denied applica-
tions for conimutation of sentence of
Isaac Mims and Percy Irvin, who will
be executed in, the electric chair at
Kilby Prison early Friday morning.
Strickland, Mims and Irvin, all ne-
groes, were convicted in Lowndes County
and condemned to death, Mims for the
murder of John Clark, 2 white man,
and Strickland and Irvin of shooting
and robbing Shirley Weaver, another
white man whose home was in Mont-
gomery. The murder and robbery took
place on #.L. & N. Railroad freight
train, on which the negroes and the
two white men were riding near Fort
Deposit. -
At hearings held last Monday after-
noon at the capitol before the Governor
and members of the State Board of Far-
dons, the three condemned negroes tes-
tified separately in their own behalf.
Strickland stated he was asleep in ©
gondola car loaded with gravel, when
he was awakened by someone stepping
on his Jeg, and almost immediately
heard the sound of a shot and the flash
of a gun, Immediately thereafter, he
said he saw Irvin and Mims robbing
Weaver. He declared he had no part .in
the shooting or robbery, and knew noth-
ing about the killing of Clark which it
appears took place in a different part
of the train, until later. In the robbing
“and shooting of Weaver, he declared
Mims and Irvin were assisted by another
negro, Otis Taylor, who escaped.

Clair Correborated
- Both Mims and Irvin corroborated the
statement of Strickland thet he had no
part in the robbery of Weaver, .Mims
and Irvin each claimed he was asleep
beside Strickland when Weaver was at-
tacked and robbed; Mims stating Irvin
and Taylor did it, and Irvin maintaining
the crime was committed by Mims and
Taylor.’ Mims sald after shooting and
rokbing Weaver, that. Irvin and Taylor
left and went further back on the train,
where the murder and robhing of Clark
occurred: Irvin gave identically the same
testimony as to Mims and ‘Taylor.

On the morning following the mur-
der and robbery, Mims and Irvin were
arrested at Greenville by the chief of po-
lice, after they had gotten off the train
and were attempting to make a getaway
‘in a motor truck. Strickland who was
with them and who said the other two
negroes had promised to take him in the
truck to his home at Brewton for $1.50,
ran when Mims attacked the officer, but
was. later caught some 18 miles from
Greenville. :

Board Yor Commutation

Atty Gen. Knight, Secretary -of State
Jarman and State Auditor Brandon
unanirnously recommended commutation
for Strickland, but declined to make
such recommendation in the other two
cases.

In his order commuting the sentence,
Gov. Miller said:

“Two of the persons interested and
under sentence of death, who were pres-
ent when the robbery was committed,
each state that Robert Strickland took
no active part In the robbery, pul, each
state: that he was present in the rail-
road car with them when the robbery
was committed. Each member of the
Board of Pardons recommencs clemency.
They heard the testimony offered on his
application and recommend life im-
prisonment instead of death. After con-
sidering the testimony carefully and this
recommendation of the Board of Par-
dons I am of the opinion that his sen-
tence should be commuted from death
to life Imprisonment. So let his sentence
be and it Js commuted from death to
life imprisonment in the penitentiary.”

over the heei and see if it needs smooth-
ing down with pumice stone. A Ught
callous is often present there wriel os
be smoothed off with one of tyo/ilttle
handled pumice, stones, Or, 4 (het of
flesh colored ta}le,may bp wry tinder
the stockings at » poing yhere tile heel

jaghirtst th . e
Stocking in thy dpiyse of a year
mount inte arming figure,

rubs harde

‘Robert Strickland’s Sentence Is!

Fs eee ;
the coummitier sald.¢
“# failure,

Vike b
on the

| salt ; ;
bill, “dnd the c
levy85 2 barrel on

alcoholic content.

both parties are a
the sales levy, est}
$595,000,000, while ¢
the beer amendmer'.
return $350,000,000,. es
Opponents to th
advocating heavy ef,
ed industries and beg
big incomes to rejvirige
hose over $100,000
posed a 40 per ¢
ment for lhe beer #/
creasing. ; i
Although the leg
have evidenced 80444)
sales tax, Speaker a
portunity would b t
and the offering Brgy:
denied the Demogwg
any heavy excise tops: ;
tries as substitutedus,
adding, however, iad
this government thRA "ies
In the report, A@BZ AUR”
wrote that after
the committee sul
other source of revi:g
the amount impertiy
as little protest, as} ita.
as little disturbangiy4 ty
manufacturers’ excimita:
The committee 4 ytedeheray
increase in the pub ray
the current fiscal cat Bae Se
tive deficit of $1,oqikaee
and the sharp deck},

1929 of several bite
$5 *

“
ty

ROME, March
can women were
Elena at the Quirdiys
Her Majesty took px:
press her keenest sihturg
Mrs. Charles A. The, ;

She showed intési4¢i¢
search for the kis rid p
bergh baby and im ¥ibe
that the child hole
heard a rumor to pi:

The Americans
Mrs. John W. G
United States ams:
ded Mrs. Alton B. je
man who once wf"
date for the presf
States against The’
Laurence Tomkins

Charles FE.
The others we
of Washington,

ret

daughter, 7
Brady of Lem
Brady, assistant $f \y
air; Miss Leith Ph
more; Miss Elizaly’4:
Anne Bissell of ch
A prayer for thi “4
bergh’s: son was ¢) )«
vices in St,’ Paul’: "é
it eer
Livlax Is Bo
For Sie .
1 Pre tans Ke
A large wildca?
killed by dogs on jf"
Mitchell, has beenf’ :

by Kenneth Und).
taxidermist, and is

The cat weighs (*
captured and wagi?)
heighth. A descriw’s))
carried in The A&yt

Company on ceil ¢

4 As
ay Taper

so chat am isi Png ou can do to

help save them is dj: Inctly worth while.

ARO.

Suing space in them, and

Jimenez.
Ka
ee eae nder Fred-

me Galvez. 1

, Morey.

hfe ta ie : mi |

spondent, epee ry

was the ong involved in t

bankruptcy trial in 1911. He refused
to amplify on the admission, saying only:
“Yes, I’m the same one, and I have
nothing more to say on the matter.”

Third Negro Gets

year-old by
night thaly ae
ally shot 3

Morgan \ieie

$5,000 on at eave

tare

tified at a yh!
20 that Rice iF
at her home ii

gin were serves

pets

‘Death Sentence

sz
et
Ex

rod

Pipettes Shah
Cm, ‘th ys é

oawerhway, ex-
MEGS, limits to
Se ess athe pavinz
Iefnow about
Weewyneer A. H.

eteey Depart-

i@ierway last
w¥nished and
segMay. This
ang to Mr.
ideally lo-
the entire

. HAYNEVILLE, ALA., March 11.—(Spe-
cial.)—Robert Strickler, negro, implicated
with Isaac Mims and Percy Irvin in the
robbery and murder of John Clark, of
' Montgomery ‘and the wounding of James
Weaver, of St. Louis, on a freignt train a
few weeks ago, was convicted of robbery
in' Lowndes Circuit Court here today and
{sentenced to death in the electric chair.

‘The other two negioes, Mims and Ir-
vin, were found guilty of murder and
robbery yesterday and also sentenced to

death. Otis.Taylor, another negro impli-
‘cated, has never been captured.

444 what health
the signifi-
ars in com-

ri ‘oss will give
following a

nts on m DeKline,
y : Perican Red

announced,

has volunteered to aid by furnishing to
all persons wert gif
]

east necessary
needed to aid

explained, is mainly
an economic {useés . The harder the
“times” the mo f ases of pellagra, is the
general trot is caused primarily, ac-
cording to kéalth authorities, by a dict
‘that does not contain the necessary vita-
mines, or what is more popularly known
in Alabama as the cornbread, fat meat
and syrup diet. The use of a small amount
of yeast, at intervals as designated by the
\family physician or county health officer
(Turn Zo Page 11)

to produce they qitat vA
in prevent: agra J.
‘Pellagra, 4 wes

Woman Sh he !

Charging

cae

NEW YORK, Mica?
U. S. District Courkys*aiey
determine whether ee sha
lude,” nine-act Pani
sion for dinner, can\tsi4¢
O'Neill's own head (S92
from “Temple of .
by Miss Georges Lew ¥s.”)

She avers her book 8;
and is suing for $2.4.)

O'Neill is abroad, busyy
took the stand and tes}:

attorney for Miss
much of “Strange Interlucys'
bodily from the Lewys opus.

Arthur Garfield Hays, cout
Boni & Liverighi, publishers.
“Interlude” also defendent!
merked that you can’t copyri
iclea,

Lewys, 4g

22s
ett

hp
a

5
ics

i 93

%
’

RAPE CASE 0”. (Gu getg eee

i ae OS? “ ‘ se ar ee " ie ae . ‘ 4 : an th Yee’ . ; ~

Occurred 9-3-54 at epproxinately 7:50 a.m. Victim: Barbara Clerk,

wiite femsle, age 21. Attacker unknown. Investigators: J. He Villtams

and L. He Phillips. ne te dec - aaa eae x

The writers arrived et the scene of the crime epproximetely 10:50
een. 9-3-54. Upon exanination of the house it was noted in the bedroom
where the etteck occurred that the bed covers were pertially turned down.
There were severel shot gun shells secttered about the head of the bed,
end two pillows were on the foot of the bed on the side next to the wall.
Llso, wut the foot of the bed, next to the woll, ley cne Kotex ettached
to e senitury belt. This Hctex zes slightly solled. There wes elso a
peir of ladies' pantics at the foot of the bed. Lilso, on the flcor nesr
the heed of the bed were two Kleenex which eppesred to heve been used,
Boiled, etc., and one ledtes' slip. flso, on the bed nerr the foot pf: i
the bed wars e pidce of plenk epprexinetely f}' leng snd 123" wice. A

chest of drevers which wes setting by the bed hed all the drewers per-

tially pulied cut, and the contents therein rere runpled ss if sonecne

bed gone through them. ilso, the crevers ine chiffonter et thé foot of

been rifled. f/.18c, the two
3 op ce } Se TG \ ry Hi hae? y t e i
; drawers in e cresser in this bed roon were pertielly pulled out, end

TOR ISA, Aor)

the bed appeered to heve been opened end had

sppeared to Hove been Piried. Sone of the contents were strewn on the
floor. In the beth room neer the door was found one rabber prophylectic.
The rubber prophylactic vc: teken and lebeled by werrant Offioer Coley :
of tne Alebena Nationel Guerd. The Kotex found near the bed wen teken
by the writer." (Note: hecording to victim's stetenent, the subject |
should have blood about the fly of his Aa end if nub ject is eppre-
hended, these pents, elong with the Kotex, should be sent for chenicel
comperison.) 7 |

* va ‘ « i ; Pee

The route of escape was learned to have been from the rear of the

I fo: M4 Oe Ie,
Be OL LISY, 0 Mebane Y Laas pet

ito at “+ a ‘

ey: WGI CRM La ae Withideal ting
renee ng xf v Sod. the: Mobile quire. Lor
MMOH be placed tn ’ d
ath ; nas deomed man aseended the scat. reputable physiclans Instead ou Xey
, Nest ‘ oY F Old just at 1 o'clock and talked for mr Cochran reported having attend: |.
seivien ters AGT a ead bay half, an hour. The first words he said Baye by order of Governor Jones, the Rev.
ing @ plan to establish a bank in the | were: puarantine Conference in New Orleans |)» BD:
town bv the next cotton season. There “Green lhillips is dead, and I am the in February, ‘The conference was’for Pes Wy
_ is a@ fine opening here for some one de-| guilty party, i was persuaded to do the Prunes? Of regulating by quaran. lee Tur
sizing to:embark in the banking busi- | it by Jennie Phillips and Jesse Jack- tine fruit vessels trading In the tropics, lat the
Ness, & || 80n I have made my peace with God and It was recommended by resolution that ©
The Union Sunday-school picnic ad-| do not dread to die.” impornct! inspector be placed at each end n
'Vertised to take place here on the 4th |: The condemned man then thanked important. tropical port, who shall re.” Wides
“of May has been postponed until the | Sherife Bradshaw for his kindness and POrt each and every vesse] Sailing for *¢istan.
1lth of May, at which time the Sun-|'asked all present to give Rev. Isreal. this country,’ its Sanitary condition, ang 2 e.)m0s\
_ay-schools of Newton, Ozark, Pinck- Chandler his spiritual counsellor five Thee fo other duties: along that line, Aree
‘ard’ Midland City, Dothan and’ Abbe- ,pents which was done by quite a num. S oionference had, commended the Pine
Ville will all meet’at Newton, near the ‘ber of the congregation. adoption of its resolutions: by the Secs Pandas
Mid!tand depot and spend the, day most]. ‘The minister then gave out the hymn *elaryvot! the :'T reasury, a vs

———— * + Te.) 5. ae a i Whiele ler

ee Nak SEAN bg Biot Cites for {he heat | ihe body oa ful view Hutiiathe drop fen,

Alabama,

“ Dr, Cochran said that L “| -zealou
pleasantly, Did Christ O’er Sinners Weep” and pres At Louisiana, Tex. Was a;
Tl... Newton Dramatic Club bath Phage the prisoner joined in singing it, at- mendations of te yidopted the recom- Biintes
form. in Ozark tonight; This club Hes ter which the minister made a short, e? The wncte New Orleans confer jfponts
. young in experience, but those w 7 but fervent prayer for. the wretched ect) Syne hs amendaitions Were abi vacy
have witnessed their play pronounce man. . Pha The bite eecinition. eer tay.
ro beivery fine, . ' eu iene OY Bi The prisoner then fell on’ his knee Partment of Public Health teri i Be tn
oo Rah th UNIONTOWN. “3. : sane Pace mrp Meter" he ane been before Congress two or? thee | Ale -
ae SG a SR OP aU: “aare-well, everybody; good bye.” times, 'was’on recommenaviic ion, i
eee A Charming ‘Entertainment. ; di ahha Bradshaw then adjusted the Board of Censors considered Sane ae |, tunity
‘Uniontown, Ala., April 20.—(Special,)—| the body of Teme rane the trigger bags Sociation decided to recommend it vi meer. :
; 3 ; n te anglin ongress f ss ris : ij |
“One of the most charming entertain lin the air. The trap fell at 1:35 Sado 2 Fwietestn: tthe? Aen signify |est end |
ments of the season was given at the; and the body was cut down at 2 and matters'to the Alabama delest fone the | Christi:
residence of Mrs. A, C. Davidson Wed-} Sodseaints ven ay the doctors from Congress. eeaition in pre ee
night, complimentary to their, § rangu ation as the neck was not brok- A proposed amend x ak Sti:
lovelyty oling guest, ‘Miss Magaret Good-|°D* “iVerything passed off orderly, lie Hes oot ea that the Secrstary te pel | thinke,
“of: i A ppc: Ra x ic Health shail ea] ati iieie’ a
tf 108 "Of hn paven Be on zt be soph pd ha nis is the first hanging this county Conference once a year 1a oe, Health Beonos
» nature'‘of'a Car arty “an nd Th ‘has had in fifty years. Jackson was a at which one member , ashington, | conceiy
_ oughly enjoyed by all present. ©; young negro, 22 years of age and he Board of H oto State | foreibl

~. first’ prizes were> won by Dr. T. LL, Was hung for the murder of Green Philt tons tee publicthantena to discuss ques. /vtions, |

. Green’ and Miss Minnie: Nixon, ’ the’ lips,’ committed last fall. He was tried = It w ty approved, "| the lox
_“‘boobys” by Val Taylor and Miss Daisy ‘at the spring term of the court held gates fo thew fean arenstruct deie~/| humilii

oe, : merican i ‘ i
here in March. The evidence was pure- tion meeting in San Rranches ate AS Bey

Sa Miss Margaret Goodloe left for. her. ly -circumstantial; though very convine- -ence to th : ?
*: home today ‘after having spent several | ing. The cause of the murder Was code of ethica, wr of changes in the.| and Re
;weeks with the family .of, Col. A.: C.; Green’s: daughter, who had run away Dr. Jero Ala., :

, : ; ‘ me. Cochran, whose ter) f |'were j
_ Davidson. tag | With’ Jackson, which ‘aroused Green's: office ag een m of |. I N,
There was a severe storm in this sec-| ahger and he threatened to have ven- expire, Was an ath Omtcer ig about: to oe

tion Thursday afternoon. Mage Beance. "So one night to avoid any trou- the office for five more yoo Tenees to aa

fee On Tuesday evening Miss Minnie; ble with him Jackson got a shot-gun: pr. Cochran thankeg ‘thes ati a win
““s) @Nixon’ entertained a ‘large party ofj and secreted himself. near ~ Green’s for the honor in re-electin, hie eon be bi |
.*So° friends at her home in the country, | house and just after Supper when the On the revision of the fotug bolle: thir- | M ‘and

_. The weather was extremely inclement,|old man had seated himself on the ty-three county societi rey ‘
but most of Miss Nixon’s guests braved | front piazza for a quiet smoke, filled ‘as not delinquent, baving went pret he tay, on
the elements. “The evening. was delight-/ him full of buck-shot. ‘reports and filled othec their 2 Cor
fully spent in dancing and with tards. ~
after: which an elaborate supper was, OOK OUT FOR THE LEADER!

served.

wbligations, | ing not:
Twenty societies were reported: partial. i that the
ily delinquent in that they had either | service «
or not sent delegates to until, p¢
the association meeting or both. Thir- i

5
Oo
ct
Uv
a
:
fs
@
na

McCALLA,

TRIED AND TRUE is the verdict of

~ teen societies were delinquent in ai) |’ D
, e ty » ~~ af, cr all | Dr. W
people who take Hood's Sarsaparilla, | Mr. W. ~ Folel e Stott CARRE ah their obligations. These latter were re- | and M
Whe ‘good effects of this medicine are | Tight Snr BE Re ¥ ferred to the Board ‘of Censors fay in- Long of
soon felt in nerve strength restored, aa baa bank vesliration, and the others passed. after ha

appetite created and health, given, Birmingham, Ala., April 20.—(Special) A revision was made of the roll of ~ trip to |
iii? Ba —About 1. o'clock yesterday afternoon counsellors and of the roll of corres- | « Miss j
ne ‘agate se ot do ee ene t but | W. R. ‘Tidwell was found dead at a-dis- Lect ectaxs eas un a relatiy
ties @ igéstion an tone’ thé stomach. ‘ : : n "he'election of officers four ball ' Man, Ma
fry them. . ~ take.) | vance of thirty yards fromthe Rouse OF werertaicen tor President. After a clos ing rela‘

site SMR p— Sls -| John’ Smithson,‘ who~lives about four race between Dr. Toole of Talladega ‘the gue
pace: ON Teaining | Ohaus.” «pau miles southeast of McCalla, this county. and Dr. R. M. Fletcher of Madison | Broad &\
Application for admittance “to uthe | ~ He was a single man and worked as County, the latter was. elected,’ presi- | : Mrs. C.

' training class for nurses may. be made a hand with Mr. Smithson. He had a dent. By from a
at the Infirmary onand after Mon-| sister at Lomax, Ala. * . Dr. Fletcher, the new. president, is an Montgom
.) day, Feb, 5th, between the hours of 10 The young man lay on his face with old and honored member of the agso- Mr. N.
/- and 12a.m. Terms, $5 per month, . tf} his left hand in hts suspenders and his ciation. onfined
zee rns 9 moo vita coe | right hand flat on his Chest. His mous-' Dr. G. GC. Jones of Hast Lake was | of sickne-
0 GREENVILLE,» EE i hey ‘tache and hair were both slightly , elected vice-president. somewha
pet ae Lr AR EI a ‘burned. No bones were broken, the on-! Dr. Edward H. Sholl of Birmingham __ Mrs, W
~ Some of the City’s Saccenstal Young | ly abrasion of flesh being on the deed and Dr. John B. Gaston of Montgomery Davie, w

Men—Other) Loeat “Nedn Votes a a ont in, whic sar were elected members of the Board of days in
Greenville, April 20.—(Special.)—Dr, N, sient feline na ee ene oa Censors’ for five years, ‘homes in
=. Hamilton, who returned home last | lay about three feet from a tree, which,’ Dr..R. M. Cunningham of Pratt City | ing.
s “nixht, was one ofthe four who took | however, was not damaged, erie ennval orator ‘wad Dr, Re 4 pS ded be :
- Inghest honors at the Tulane: Univer. | ni rade last seen ene the young man igi of Montgomery, altarnate ora~ thane.
» Sty. This was a deserved compliment “pe fatheh Of Jen. eintthec eae me A college of twelve councillors. was | attended
. and hig triends are’ proud of hig record, distance off and gotten mail to cape elected. : ; Messrs
He is a sun of the late’ Dr, “Hamilton to the postoffice. “He had also on his}.. Mobile is the next place of meeting, ; michael
of Greenville, and brother of the late | person a letter, which he had written! Th association adjourned at.3 Dem. || day-in th
Dr. Clarence Hamilton, “'He leaves! to a young lady, and was about to de-| * m Pa wei Reve. |
Monday for his chosen’ field of Prac-/ liver, it is supposed. . THE PRESBYTERIANS, Rev. J. |

tice,“ ‘ ;

» During the past four: years Green-
~ Ville at various colleges has turned out

_y, & 8reat number of physicians and the

It is evident the young man was killed} paiva Day's Session ef the North |. eres
by 5 blaenin Mea yesterday’s storin Alabama Presbytery, P
Op fia: Way. home. ; Birmingham, April 20.—(Special,)—The
-#tecess they are meeting with is won- cogs aetna juvestigate, but not North Alabama Presbytery opened to-
/desful. “Two of the most notable cases sind day’s session with devotional exercises 7

e “etal EN aero pe dads rt A: the In 1850 “Brown’s Bronchial Troch- led by C. C. Epperson.
~ ben gladuated a Klee eme Nayhg hued OR introduced, and their success Rev. J. W. Lacy was appointed to the
~ years ago and at once stepped into .

» Asthma, | vacancy in ‘the chairmanship of the

‘s active practice and great prominence, | =" ‘, ‘
a He ts now with Dr. Baldwin of. Mont- and Bronchitis ‘has been unparalleled, Committee on Education and Judge

oo) Bomery, “and the Montgomery people} os. BIRMINGHAM. ~~ Johnston of Anniston to a Vacancy on
can attest hiv virtues and skill, © Dr, ; ecielie 2 : the same commitiee,

ny rancis Marion Thigpen, a brother of {5 The Byars Murder. Trial, A communication from Rev. J. WwW.
myer CL A. Thigpen, Pereerpyer at the Birmingham, April 20.—(Special.)—The | Sherrill was read and he was excused

1 ps college a year ater and he too State closed its rebuttal testimony in| from attendance on the Presbytery, ,
_ 75 making a reputation Second to none, the B ‘der trial this: wn The call of the churches at Woodlawn,

* It was his intention to jocate: in sonie ¢ “Syars murder trial this morning. | pratt City and’ Mast Take for the sap

larze city when his father, Dr, Job | The defense closed ft evidences tn»,

hie sat pcr

ADVERTISER,

SCKCIUTIOC

oa HePE ay

IY.

KIRKLANDSIN A FIGHT, KILL
KIRK LAND, | %

NG NEAR DLA,

, y
. r
& 5. Ss.
ee at ghey DENNIS:
Whe Slayer is a ‘Well Known Far-
“mer of Good Reputitlone Local

‘Newton, April 20~-(Ypecial.—A. re-

“A party

\for Bryan,
the family

of her brother, Mr. Win, S,
: Wilson. »Sh

e-will be absent a month, ¢
gotten up by the younger
“set” owas given to-night at the resi-
dence of: Mr. Chas, Neumann, :
Sheri? Barg
terday of a t
cof Mobile County;
&a/man.in custody

stating that he held
“who answered every
description of Jeff Watts, the murderer
of Deputy Sherif¢ Bargdiner, a brother
of the Sheriff, Capt? Bargainer, accorn-
panied by a deputy, left for Mobile last
night to identify the prisoner,
‘Numbers of negroes have been caught

“ port hae Just reached this plave that,
$3. Kirkland, nvihg about’ six or sevé !
en riley from Midland City, killed Den- ;
nis Kirkland on yesterday.

The renort. is that S..S. Kirkland en:
deavsred to make Dennis Kirkland go
to work, which he refused’ to de
resulted as above stated, Dénni y irk
land cut S, S, Kirkland very seriously.
in two or three places before he was)

* shot. OO eee

Mi. 8. S. Kirkland ig “a, Weil-to-do»

*) White. furmer and has always been res
“garded as a, good clirzen, Dennis Kirk-

_{ iandpis:a-kind+or mongrel, and ith is

badly: behind « With? their! work (in ‘this
\ portion’ uf the countyy. Yay ee pee |
* Heavy ‘rain, ‘accompanied with’ wind,
aad considerable electric» display’ last

\o
tion fits Jeff Watts exa
gainer is expected hom
) i
@ and vot Jeffs, P

answering to the description of Jeff
Watts, but none have ever proven to
be the right man.’

This negro was arrested at
“near: Mobile, and it is said his descrip-
etly. Capt. Bar-
e tonight.
meeting and rally
Ops and Reps at Calhoun yes-
and several attended from this
Some few Democrats were pay:S-
ent ‘on’ the’ grounds, - Speeches ire
made by Judge Gaston of this County,
- Warren §, Reese, Jr., and J. C. Fonville,

udge Gaston speaking. an hour and
* thirty’ minutes. ‘The negro band from
; Greenville furnished music for the occa-
SlON YF genie ‘ , :

There was a big

}.terday,
‘county,

Sald- that he “was a. trifling, \/gzood- .\ The : Republicans.’ belonging to the

‘ for-nothing fellow avd: Inclined to! be “Stevens ‘wing of the party will hold 4

“fussy. Dennis Kirkland Was raised by ; county convention and send delegates to
AM slayer, Ae e EAee S PES yo yor) | the’ State Republican convention,

sara ee le le a ie aac a '. Major Thos, W, Peagler and Col, <A.

~, Owing to the recent’ eeld ‘snap: 4nd |. Steinhart have returned from the Grand

» thevtardinéss of. the spring farmers-are Lodge, K., of - P. ‘The local lodge in

‘Greenville failed to hold'a mee
night, Owing to the heavy rain.

The Young Men's Christian Associa-
tion met at’ its rooms tonight. New

ting last

“night. Rain’ was needed very: much: to
‘soften ihe svarm lands that’ bave. not
‘ been -broken “thig Spring Geeeryrs
) ealth® af “our! /peoplé! remarkably
»Soud" Peace» and’ plenty. ‘abounds in al-
emostrevery beme’ inthis county,
- Ealtor Joe Adams ‘of the Ozark Star
. and family have*heen visiting relatives.
~~. here for the last twe or three’daysi— *
* “Newton can now ‘justly’ boast of hav-
“ing the neatest and. most unique hotel
~dn- Southeast Alabama. :It has been
Open ‘to the public’ for only ‘a short
waile, but it is fast becoming a ‘popu-
‘elav resort for tourists,’ and business
men’ generally, BN, RaeeCab re ay ty ae

Arita ,

“There is not very. much interest man-

Members are constantly being added to
its roll and altogether the association is
vin a flourishing condition.
AFIOn SF." C, Richardson h
from Conecuh County.

FIRST HANGING HY YE

as returned

THE |, MURDERER
Fey PH
et | ‘

OF GREEN
ILLIPS 1S EXECUTED, |

He. Makes Confession of His Crime,
o)and Declares Wimseif Prepured

».fesiec in politics ‘In..thigs section yet,
ET he Kalb following vt ints
4 /) county have to a great extent relaxed

their interest in Ixolb's behalf. Men
leust particle of. a
desire tobe influenced can no longer

ere tien |

foyWhu possessed the

~
i

3 » to Meet His God.

‘

Andalusia; Ala., April 20.-(Special.)—~
A mixed crowd variously ’ estimated

“9 claim to be a Demoerat and then sup-
port Isolb. The recent exposures made
-\Js by. The Advertiser and then support-
~ § ed by “Uncle Jimmie Whitehead” forces
: “, the Kolb supporters back into the Dem-

~ “*ocratic’ ranks, or hurls them headfore-

most.‘ into” the’ Republican Party,
-,Hlence Kolb polities are at a consider-
«able discount just now., peg

to a man,‘ in Soyth-
the
in

True Democrats,
east’ Alabama heartily -endotse’’
» Cleveland administration and ‘are
accord with the State administration |
and +will support Oates for’ the’ next
Governor of Alabama,“ Bit
fe

4 “eR <7 a te
The business men ‘of: our town’ are
ape ER

cs A Mot iy

oo '
a wee

enjoying.a good trade and are negotiat-
ing’ a plan to establish’ a’ bank in the’
_> town by the next cottoi season, There

5
t

at. from. 1,500 to 2,000, assembled here
today to witness the execution of Jesse
Jackson, a young negro, for the mur-
der of Green Phillips. The ‘multitude
began to assemble about’ 9 o’clock and
by noon the jail was completely sur-
rounded by a Surging mags of humanity.
The scaffold Was erected close by the
jail on the east side and was walled
in up as high as the trap which left
the body in ful view untilathe drop fell.
The doomed man ascended the scaf-

fold just at 1 o’clock-and talked for
Jalf an hour, The first words he said
were ss) j

“Green Phillips is dead, and I am the

“is a fine opening here for some one de+
‘siting to’ embark in the’ banking busi-
“Ness, oe .

The

TWnton @& Vas ‘

son I have mana

guilty party,

I was persuaded to do
it by Jennie’

Phillips and Jesse Jack-
e My peace with Gad and

} “|
Texas, where she will visit

ainer was in receipt yes- |
elegram from the Sheriff }

Fairford, |

a
|

iHE STATE. MEDIGAL

¥ ty Based

pers
hate

IXNG ONR,

ane" 4

; n

: ie ay

Seg tas
Be

Dr. ‘Jerome Cochran ‘‘ Re-elected
State Health Oilicer—Next - Ses-
Sion to Be’ Held ‘in Mobile.

- ‘ . *, ee }

&
?

”

‘Birmingham, April § 20.—(Special.)—
The State’ Medical Association held its
‘final session. this morning.’:

Tle attendance was not ‘as large ‘as
8, but the results were

i the previous day
“important. i
| The most important matter that came
“up was. the report of the Board of Cen-
' sors, reading the reports of the State
‘Board of Medical Examiners: and Com-
_ mittec of Public Heaith. All these re-

“pocis,were made through Dr. Jerome
Cochran, Senior Censor and State
"Health Officer. :

| ‘I'he rules governing manner of con-

ducting medical eXalminations.so ‘as to.,

renuer thein more perreet Were changed
in some minor particuiars but net ma-
| terially.

Lhe proposed new quarantine bill by
elie it is expected to improve and
Perfect the Gualantine system of Alas

nana, buth vy un increased uppropria-
| lion and better facililies, was repurced
j wut udopted on recommendation of the

+ Beaid of Censors, who will submit’ it.

to Cclonel Tompkins, theeir
to be properly shaped up-for
, tick. to tne Legisiature tor passage,
| This bill, if enacted into a law, will
currecu inconsistencies now existing in
the quarantine regulations and greatly
impive matters, ’
_ The ~Board of
| tnensded that the med
ot the Mobile quaran
ty the: Board of He
1 aud ‘that :a law’ be
lefiect.s Lhe re
cuired in by t
Beard of Ce
this -eourse.
In - reference to
quarantine pills,
, that ‘the Associ
: board of Ce

Censors’ ~recom-
ical management
tine be given back.
alth of that city,
enacted to that
commendation: was con-
he Association, and the

these two proposed
Dr. Cochran Stated
ation “had instructed the
nsors to propose two quar.
entine billy on the lines indleated, one
| to cover the Beneral quarantine of the
; Staite, and ithe other with especial’ refs
“erence to: Mobile. | These propositions”
had been adopted ‘by the Association,
and Dr, Cochran gaia he hoped that
when the time comes every member
of the Association Wili use his personal
influence to Secure the passage by the
Legislature of these bills.
lyr, Inge, of Mobile, Said it was abso. |
lutely necessary for the Legislature to
take active steps in the matter of quar-
anitine. He will. use all his influence
/to have ‘the Mobile quaraniine taken
out of the hands of a mixed crowd and
put Where it should be. He wanted the
Society, to see that the Mobile quar-
anitine be placed in the hands of ive ,
reputable physiciang instead of one. |

Dr. Cochran reported having attend-
ed, by order of Governor Jones, the |

, Quarantine Conference
‘In February. The co
‘the purpose of regul
tine fruit vess;
Tt woe rare

e in New Orleans!
nference wag for |
ating by quaran. |

j
ts trading in the troptes, |
’ ' 4

ASSOCITLO

THE LAST DAY Is AN: INTEREST~ a

attorney,
presenta-"j'

nsors authorized to pursue -

condi!
=Com)
ed in
“Res:
J.'H.
ill, we
utes.
. Rev
ato fill
rian ¢
Th
Fina
adopt:
The
son fu
the sj.
ternou:
The
overtic
The
Session
19th «
+ that ni
much
cal co
Noi if
{ Chu or
hereb,
eral A
Ville,
mittee
VOVk,
“to be aj
bly, in
atoga,
To
ferred
First
church
{can be :
| by the
Seeo:.
+ longing
! employ:
| groun »
i Northen
h Third
| be refer
» Of cong)
“not hav
, The p
simply
act thr
atelv ec.
also ma}
ings ann

{

j t!
1

The Mes
' Birmin
~—Birmin;:

the Met}

‘adjourn:
of busy

“The fol

to the an

I..W. M
‘Arringto

The de}

Conferen:
Ellis, G.
‘Garner. \
‘C., Lomb.

LOOK ¢

Rev. J.
Daily
» Items

Ul. S.A "

ee (4 ,
yp klebio ape Whee

“

os chia ME MAI 8 ERE

.208 = Ala.

“

[4,5] Charge 3 is as follows:

“J charge you that the evidence in’
‘this case is partially circumstantial, and ©
before you would be authorized to con- .
vict the ‘defendant, the evidence must
be so'cogent as to exclude every rea-"
sonable hypothesis except that of guilt,
and if you are not so convinced, then
you should acquit him”.

This charge was held good in Wiggins ve
State, 25 Ala.App. 192, 143 So. 188, But .

in that case, one of the elements necessary
to prove the defendant’s guilt was based
on circumstantial evidence “to an extent”.
But here every necessary element was prov-
‘en by direct evidence, and we might add,
though not necessary, it was undisputed.
In McCoy v. State, 170 Ala. 10, 54 So, 428,
429, this court said: .

“In both of those cases, however, the
incriminating evidence was wholly cir-
cumstantial. Here the evidence is in
part circumstantial; but an eyewitness
testified. directly to the defendant’s
presence at, and participation in, the

_ killing of the deceased. In this state of
- the case, the charge was well refused,
because it tended to lead the minds of:
the jury away from the direct evi-
dence, and to a decision of the issue up-
on consideration of the strength or
weakness of the circumstantial evi-
dence alone, whereas there was direct
evidence which, if credited by the jury,
_ would have justified a verdict of guilt”.

The charge was properly refused. More-
over, it could have been refused on the

ground that where the corpus delicti is

clearly established, and the defendant’s
confessions, if believed, would alone be
sufficient to require a conviction, and the
circumstances adduced were merely addi-
‘tional proof of his guilt, requested instruc-

88 SOUTHERN REPORTER, 2d SERIES

tions on circumstantial evidence are prop-
-erly refused, In Dennis v. State, 118 Ala.
‘72, 23 So. 1002, 1004, it was said:

“The evidence in the case is not
wholly circumstantial. The corpus de-
licti was clearly established, and de-
fendant’s confession betrayed the guil-
ty agent. If credited by the jury be-
yond a reasonable doubt, they alone
were sufficient to require a conviction.
The circumstances were additional
proof of his guilt”.

The two voluntary confessions of the
defendant here were whole and complete
confessions, evidence of which was intro-
duced after proof of the corpus delicti. The
circumstantial evidence in this case was
merely cumulative. |

[6] Appellant further conterids that the
trial court erred in overruling his motion
to charge the jury in writing. This has
not been a legal requirement since the
adoption of the Code of 1923. Jones v.
State, 260 Ala. 341, 70 So.2d 629, 633.

The motion for a new trial raised the
questions we have here considered and was
properly overruled.

[7] As we said in Jones v, State, supra:

“Tn accordance with our duty in
cases of this character, we have ex-
amined the record for any reversible
error, whether pressed upon our ‘at-
tention or not. We have dealt with all’

questions calling for treatment. We
find no reversible error in the record
and the cause is due to be and is af-*
firmed”. | | :

Affirmed.

All the Justices concur, | ete

ae ee eee

eapbtieniesivnonion Saat = >

RRM RHR HS

pAeccetne cet

Sion GPE. 0 tee = He

Si oe E

ciliates ENA CL MRM ERA

230 La. -

Pro
lottery.
ish of ‘
O’Hara,
and the
Court, |
did not :
testify «

Affi

1. Crim

Tri
nesses |
heard 1
not be
appear:

2. Crin

In
officer
arrests
tery Ss
force,
testify
not er:

3. Cri:

lh
to evi:
retur!
‘State
Empk
LSA-

4. Cri

]
‘to ev

nn pee ee . a

JACKSON, Sanford, black, hanged Selma, Alabama, Feb.

MO32
MURDER GF RUFUS GILL

FROM THE CHILTON VIEW FEB 9, 1885

Sanford Jackson, a neaqre was hanged-in Selma on

13, 188),

imst., for the murder of another negra named

March of 1882.

Rufus Gill

the 13th

‘ *

906 = Ala. 88 SOUTHERN REPORTER, 2d SERIES

quested instructions on circumstantial evi-

/ Melvin JACKSON - dence are properly refused, eed f

v. ;
nett _ 6 Criminal Law €=804(1)
i STATE. | us
_ Written charge to jury has not been a!

i 4 Div. 817. ;
Nob, legal requirement since adoption of Code:

: of 1923. ;

FLL a ee ea

Supreme Court of Alabama.
Feb, 2, 1956.

Rehearing Denied June 21, 1956.

Defendant was convicted in the Circuit
Court, Russell County, J. B. Hicks, J., of
rape, and he appealed. The Supreme Court,
Merrill, J., held that the evidence sustained
the conviction.

Affirmed.

1. Rape €=51(1)

Rape conviction was sustained by evi-
dence.

Evidence that defendant had sometimes
acted a little peculiar was insufficient to sat-
isfy burden imposed upon defendant by his
plea of not guilty by reason ‘of insanity to
indictment charging rape.

3. Criminal Law €=829(1)

Refusal to give requested instructions
would not effect a reversal, even though
some of instructions correctly stated appli-
cable law and could well have been given,
where court’s general charge fairly and
substantially covered same matter, Code.
1940, Tit. 7, § 273. . a

4. Criminal Law €=814(17)

Where every necessary element had
been proved by direct evidence, requested
charge on circumstantial evidence was

properly refused.

5. Criminal Law €=814(17)

Where corpus delicti is clearly estab-
lished, and defendant’s confession, if -be-
lieved, would alone be ‘sufficient to require
conviction, and circumstances adduced are
merely additional proof of his guilt, re-

7. Criminal Law @=1134(1)

Where appeal is prosecuted under auto-
matic appeal statute, Supreme Court will
examine record for any reversible error,
whether pressed upon its attention or not;
but, finding no reversible error in record
will affirm. Code 1940, Tit. 15, § 382(1)
et seq.

V. Cecil Curtis and Roy L, Smith, Phenix
City, for appellant. |

John Patterson, Atty. Gen., and Paul T.
Gish, Jr., Asst, Atty. Gen., for the State,

MERRILL, Justice. '

~ Appellant was tried in the Circuit Court
of Russell County under an indictment
charging the offense of rape. He entered
a plea of not guilty and not guilty by rea-
son of insanity; he was found guilty as
charged. and sentenced to death in the
electric chair. This appeal is prosecuted
under the automatic appeal statute. Code
1940, Title 15, Sec. 382(1) et seq.

[1,2] . The record, shows , that all the
legal requirements appertaining to a capital
case were properly met, leaving for our
consideration only the questions of suffi-
ciency of the evidence, charges, rulings
on evidence, and the ruling on motion for a
new trial. _ Oo

The defendant, a Negro boy 17 years
and 11 months old, had escaped from the
city jail in Phenix City... Early the next
morning, September 3, 1954, he entered the
rural home of a Mr. and Mrs. Clark, with
whom prosecutrix and her two year old son
lived. Mr. and Mrs.:Clark were not at
home at the time. The defendant went into
an unoccupied bedroom, put on a ladies

Ae Pe ia nl il in amit al ak Be

ie eine ida
RES RE

JACKSON v. STATE Ala. 207
Cite as 88 So.2d 206

short sleeve dress, rolled up his trousers,
‘tied a handkerchief around his face, put
on a straw hat, picked up a shotgun, walked
into the bedroom where the prosecutrix and
her little boy were sleeping and told her to

get up.

The prosecutrix testified that when she
awoke and saw him standing at the foot of
the bed she asked what he wanted and his
answer was “you know what I want”. Her
little son began to scream and she was or-
dered to get up out of bed and fix the child
some breakfast. The defendant found a
rifle in the house and exchanged the shot-
gun for it. After a time of begging on her
part, he threatened to kill both her and the
baby if she did not submit. She tried to
get him to desist on the ground that her
menstrual period was on, a fact, but he pro-
ceeded to rape her. He then left the house,
returned for some extra cartridges and left
again with the rifle and prosecutrix’ bill-
fold. He discarded the dress, the hat, and
a cold drink bottle about 100 yards:from the
house,

He was apprehended six days later at ‘a

‘movie house in Columbus, Georgia, being

identified to the officers by his father. He
made two voluntary confessions—one oral
and one written; each full and complete.
He led the officers to a briar patch where he
had hidden the rifle after he left the house.

_The prosecutrix identified the defendant;
the evidence was undisputed that he raped
her; it was undisputed that the confessions
were voluntary and the only possible con-
flict. in the testimony was on the question
of his sanity and that evidence fell far short
of the burden imposed, because all the evi-
dence on that subject was that he some-
times acted a little funny or peculiar. His
father so testified but also swore that in his
judgment, the defendant knew right from
wrong. The defendant did not take the
stand,

The undisputed evidence was ample to
support the verdict of the jury. We have
carefully read the record and there is no
reversible error in any of the court’s rul-
ings on the evidence.

Defendant’s argument in brief is'directed
Principally to the refusal of the court to
give requested written charges 1, 2, 3, 4, 5,
6, 7, 8 and 10.

Charge 10 was not predicated on a belief
from the evidence and was properly refused.
Willingham v. State, 262 Ala. 550, 80 So.2d
280.

Charges 8 and 5 were held bad in Odom
v. State, 253 Ala. 571, 46 So.2d 1 (charges
1 and 2),

Charge 4 is not applicable to the facts in
this case and was properly refused.

Charges 1, 2, 6 and 7 are “burden of
proof” charges. They could well have been
given and it would seem that the trial court
would have given them out of the abun-
dance of precaution. Charge 1 was upheld
in Neilson v. State, 146 Ala. 683, 40 So. 221
(charge M). Charge 2 was upheld in Davis
v. State, 8 Ala.App. 147, 62 So. 1027 (charge
28) and charge 7 was upheld in Diamond v.
State, 15 Ala.App. 33, 72 So. 558 (charge
7).

Title 7, Sec. 273, Code 1940 provides in
part as follows:

“* * * The refusal of a charge,
though a correct statement of the law,
shall not be cause for a reversal on ap-
peal if it appears that the same rule of
law was substantially and fairly given

‘to the jury in the court’s general
charge or in charges given at the re-
quest of parties. * * *”

[3] After a careful consideration of
these charges in’ connection with the oral
charge, we are convinced that they were
fairly and substantially covered in the
court’s general oral charge, and their re-
fusal will not effect a reversal of the cause,
even though some of the charges correctly
stated the applicable law and could well
have been given. Odom vy. State, 253 Ala.
571, 46 So.2d 1; Woodard v. State, 253
Ala. 259, 44 So.2d 241; Helms v. State, 254
Ala. 14, 47 So.2d 276; Cawthon v. State,
254 Ala. 35, 47 So.2d 200,

SSO NAR SEAR ORME CRE: oo re acenet eet te ee ho Shenker s matese oe ct eabcinnte mate Seecaneet a 3 Palatine :

eee

Mrs. Routt had advertised her property, Pleasant Mound, ae s : ; ie : ay CH APTER XXV :
Saabs Green, for sale in 1854 and presumably was not long there- ie A CASE OF “JITTERS”.
sie may ving to Mississippi. Adding more interest to. the story, ¢ tah so AS

a Routt's slave, Jacob, had been found: guilty of murder and f 3 } ‘ s eke isco

was hung on March 31, 1855, with ‘several aoe ’
penitent 4 cance nd : . ‘a _.__ The slavery question reached a boiling point in early 1836 when
se Sega bi : ians were not too interested in locai _ “the Kansas Civil War raged between May 15 and May 2]. Anti-~
: However, Madison pie a ndering Shakespeare or Vienna’s "Slavery as well as proslavery forces sent representatives into Kan-
~ civil problems, and were not po t to leave,” that was the ques- __ _ sas to test the slavery question. A Huntsvile-Kansas Migrating
“To be or not to be.” “To leave or no: 2 eet 5 * Society,-.vas formed in Huntsville in January 1856, with A. Withers
tion. ~ : Be ae oe Bas a die _as President and R. S. Spragins as Secretary. a ey
i = ; j ith E., Bessemer - . :
<i’: The Steel Age was rf aa Tice tee acts air rather than = While life-was reasonably peaceful in Madison County, blood
covery ofthe: Process 9 Phe the struggle that would bring the . «letting was the order of the day in Kansas. Proslavery men elected
fuel. But looming shen it the rogressive region of North Ala- : -- & Majority of the .territorial legislature in* 1855 and established a
Solstht 4olits kmees and t ‘einen of Washington Irving, who in |: “ government at Shawnee Mission. The free-scil forces held a conven-
aes oe 4 ae ee “The Almighty Dollar’, to Segue tion at Topeka and framed a free-state constitution. » ~
‘ 854 had coine A : : 5 Land”, Eee - ieee ae
sore Fine “great object of Universal Devotion througne * ~The Pierce administration supported the Shawnee-government,
. would mean little to the area, in years Np eee pee -. =. providing little consolation for those.in*Kansas who wanted no part _.
: : ~ of slavery. Proslavery forces stormed and wrecked the free-state
‘“eapital of Lawrence. John Brown retaliated and led a band to -
»attack a settlement near Pottawatomie Creek where five proslavery |
men were viciously murdered.- Pog : ies
Fai

Guerilla warfare was going on all over the territory despite

_ rowing forces of United States troops. When President Buchanan

took office, he promised to restore law and order in Kansas. Yet.
Buchanan himself supported proslavery factions who advocated’
that the only slavery question was whether to admit further slaves
‘to the state, not whether slavery itself should be abolished.

a te

'y_-By 1857, the famed Dred Scott decision increased the hostili- -
ties between pro and anti-slavery factions. Dred Scott, a slave liv- a:
ing in Missouri, had been taken by his master to the northern part >>.
of the Louisiana purchase where slavery had been forbidden by the” 3

‘Missouri Compromise. ~ >. 348 85S pe eee

4) y i S39 * se a

ee ey Se
_ Scott sued for his freedom and: the case traveled to the Su-)*.=
Preme Court. A majority opinion of the court, written by Chief
ustice Taney, on March 6, 1857, held that no Negro:slave could be
4 citizen of the United States and therefore Scott could not bring)
suit in federal court. The Supreme Court further dereed that _ Bale
Congress had no right to prohibit slavery in the territory and that
_ the Missouri Compromise had been illegal since the day of its |
enactment. ~~ ©. Bee ee: See. Seer oe ae

The South was delighted with the decision. In their eyes, the -- +.
“Supreme Court was protecting slavery with constitutional guaran. 3
tees in every national territory. They eagerly looked forward to -* :

the next reports in the Eclectic Magazine. As Winston finished his=3-733

~ “3
2 a 4

: stol it ge ee 39 ere $ In the political arena, attempts to havea constitutional! conven-
Revolving pistols Wea tion fell by the wayside, as the state voted against the move. Madi-
Gross Income Doctors & Lawyers te ~, son Countians, in May 1856, voted ugainst the proposal 699 to 16i.
Gross Amount of Auction Sales : © Later, on October 1, 1956, Huntsvillians flocked to hear the Gover-

Private Sales, Auctioneers : nor of Tennessee, Andrew Johnson, later to become President. The
Fees charged by Commission merchants

aud V-

00 WY’

: — state reported an 1855 debt of $9,231,888, compared with $4,484,606 |
Sales of merchandise ak “ee gees 2 $528,127 Sin 1853eand $9,232,555 in, 1847. The expenditure reported for 1855.
be denna RRS ET ae cata na ene Oa sees t ot amen i ; z } rates ne : : * ; z
+4 Fixed salaries over 500 : aya See US ee igke | $665,215.68 vies Ree Sas aaa, .
YJ Income Foreign Insurance Companies , Egees. Law ed eas Huntsville, Madison County, Alabama and the United States
of Value vehicles except for pl Oe cae were,on,, the move. Commercial fishing in. Madison County was
*® Value of horses & mules kept 30,602 opens recognized by an act authorizing a fish trap at *he “Grand Cutoff”
- +3 Value studs & Jacks ele seen 6,175 ; about eight miles from the Flint River’s mouth; the Huntsville
Q ‘Number of slaves ...--? Bes ae et ee 12,659 ; facturing Company was incorporated with orga-
oe = NU DEE.O pepgeee sik: 14312 Re eae Laurie, B. F. Gibson and Robert Lusk and, on |
rs Money at Interest <0 o-+ gg ena ustees of the North AJabama College bought

H-wyop teTTTasquny

seeee

w Money) hoarded £2... 2:i-.-----sstetarennieors : ea 6 $2,000 ee os Be si £ George Harton, advertising on June
© Money employed in regul exchange business i22..famse $ 45,000 «veg. -) *°0, 1856 for’ -ucti building 136 fect long,-81 feet deep
Money loaned at more than legal interest -.....- Se vceatee De 2,000, oe - through the center, ories, no basement, to be built in

Total State Tax on real estate $8,497.14 Personal Property $ 14,252 ogi} . @the Grecian style. m1 was organized in

: -# 1852. the Territories of Nebraska and Kans: 1854, being the 18th,
In 1856, a depot was built by the Memphis and Charleston. . 8". 4
Railroad at Madison Station, even before one was built in Hunts-— fea “sgotiated the treaty that opened Japan to Americans.

19th and 20th territories. In 1653, Commo
>. ville. It was puilt on lands of James Clemons. Thomas J. Clay was; —. oe =:
-, appointed depot agent. He was giso appointed Postmaster of Madi- Uh gen ee The years of 1856 to 1860”had not passed, however, without a —
Paid son Station, established the same y Cans: oy : eee a Eat murder sensation: The Circuit Court records of 1857 contain one of

foTTTasqunk peluey ‘goove eAPTS

aely

; es eae Pee jet ee eo wo Eee cag cans -sthe more interesting and controversial cases in Madison County’s
Cc eee big year of the puble ally occa yelegraph finaly Shee CaS history. In connection with a book “Defense of Abner Tate against ee
County april: 1856, giving Madison’County contact with Memphis: 4 ns gquctitrges of. martes eben Bingham, Blizabeths
‘and Montgomery. “The North Alabama Telegraph Company com- © - Ge filec t-Abner Tate’s neighbor who D. H. bingnam hob tee alee
d-the line, built for it by Coleman’ and Montgomery. ‘The first. ee filed a $50,000 suit against Tate for defaming her character, quoting _
pleted t e Ine; ou* 1 ted ifi the land office on Eustis Streetist es tt “tin part from his book that she was referred to as “the woman around =}
cere ph office - oS sy ae ee Ge Ge Pee ae BeBe oe at whose marriage couch six grinning skeletons were already being.” © -
” Next came gas. A ew light.was flickering. The Huntsville Gas 2 ate was referring to her six former husbands whose deaths were
: Light Company (changed to the Huntsville Gas Company in 1860) “2 : ous circumstances. Legend hasit that she
was organized in April 1856 with a capital of $7,325. Such a move _ ‘d. She had previ- |
ed by public meetings as early as March ‘1850. A news- |
~ paper report of March 19; 1856 stated that the new company had ‘4 nos
_ Dr. F. H. Newman as President; J. Withers Clay, Secretary; George a putrid corpse.”;
W. Neal as Treasurer, with Board Members George P. Beirne, Eg- = + a ; regpect to her hus- -
; es. Thomas S. McCalley, William Echols, “Jr., Samuel : all*the consolation
Thomas White. Later reports indicated John S. Dickson ° ee t bring to the bed around which night-.
: Is, Secretary Treasurer. The Com- ee the eridearments that .*
ase from the city in May, 1856, to use - nce 5 irs ¢ shless forms at the ©
OF i of William Lewis, to build a plant on” 1 irit which \ tia
a. allatin) on which to 3 . and enforces a lingering : ee
sss} manufacture gas made how many-Madison ~ Ae ee at dae
= _,Countians: were then using, 854 kerosene lamp, - Ms “The case had its beginnings se
2 or how many were using th bt chine invented in. ~ * 1856, Tate had been tried for murder, on charges pre
_ 1846, or the new Singer machine 01 aeioe ~ © Routt (referred to ‘in- 1856. as Mrs. Barbara Hazel of
the 1852, patented Wheel and hin paree Diy is Page Soo ie Sate See oo ee he eee aly
Sern aed a : iS oe i

Pur

_ yoselt

Mississippi). *

4 =

peeae

bo TIULYEY

F EQUITABLE

tte etemenensinteienntall

+ Protected by Present
Voting Trust

-k, June 16,—Superintendent
of the state insurance de-
said today that he had no’
ed his report in the Equitable
overnor Higgins. He declined
n he would do so. ‘Today's
the executive committee was
routine business. At the
Chairman Morton said tha’
fendricks report {s given out,
of the committee will be
>. It is not expected that
wil] be made pubile beforo
iy or Tuesday.

ing Trust Approved.

nittee of poliey-holders, or
, DP. Crimminas is chairman.
was ordered to secure the
on of the Equitable Society
ted a resolution declaring it
opinion of that committee
voting trust will assure an
xinistration of the society's
the interest of the policy-
4, in view of the delay in
‘mation of mutualization, the
an js enttiled to the sup-
policy-holders of the society,
sower to nominaie directors
existing vacanctes in the
power ang duty to hereafter
jority of the directors upon
tion of the policy-holders
and to elect all other direc-
r own, the uncontrolled choice
it is in the trustees of the
:racter, justifies our betief
‘bjects for which this com-
+s organized will have been
‘4, as far as is possible at the
xe, and that the rights and
¢ the policyholders will be

ym Attacks Hyde Sale.

8. Bacon, counsel! for cer-
holders, today made an at-
a recent transfer of the ma-
he Equitable company stock
W. Hyde to Thomas F.

however, thtre has
a-fide sale of the Hyde
Mr, Bacon. I believe the
will shortly find that they
rown from the frying pan
If this is really a fake,

t sure,

olders will be really selected
agémenr: or thelr agents, who
to \pe agents very quickly
not fluence the policy-hoid-
ct th right directors. The
rs Mnow only ithe local
theg mutual management !s

spongible than 4 stock man- | the brain.
‘before he

r the stockholders, being in-
far ae their stock is con-

e at any rate, something at, All

8888 Stoke

ARE. EXECUTED

Harvey Smith, John Collier and
Will Jackson Hanged,

Noose Slipped m Neck of Smith
and He “Thank’ God,
I’m Free’-—He Was Then
Eacorted to Scaffold
and Henged Again.

BE ants 6 5 td Oe

Decatur, Ala., June 16.—Harvey Smith.
John Collier and Will Jackson, colored,

were hanged in the jafl yard here this
afternoon,

Troops were present as a precautionary
measure, but there was no disorder.
SBSmith and Collier were hanged for the
murder of Miss Bell Bloodworth; and
Jackson for the murder of Officer E. L
Steele. Two thousand people surrounded
the jail during the execucion. The three
men were hanged together, but when
the drop fell the knot slipped on Smith's
neck and he dropped to the ground, cry-

ing out:

“Thank God, I am free; yes, I am
free!"'

He was picked up in a semi-conscious

condition and hanged a second time, the
Tope drawing so taut that it cut deep
into hia flesh. Smith was practically un-
conscious when the drop fell the second
time, and had to be held up on the scar-
fold as the rope was adjusted.

Both Smith and. Collier protested the'r
innocence to thé’ last, while Jackson
claimed he killed Officer Steele in self-
defense. be

For Killing Miss Bloodworth.

Smith and Collier were convicted of as-
saulting and killing Miss Belle Blood-
worth, a popular and well known young
lady of Decatur. The boldness of the
crime startled the whole estate. Miss
Bloodworth:-was at the store of Mr.
Wilkinson
and telephoned her home. telling her
mother she was on her way home. One
of the negroes was at the. atore at the
time and the testimony ahowed that the
two followed her for several squares ant
then, when she was near a dark street.
but almost In the heart of the city, they
attacked her.

Bhe evidently gave them a hard fight
for her life, for the ground around ‘the
epot was torn up considerably. When
Misa Belle did not get home in some ‘imo
her mother became anxious and began
inquiries. A search war made and the
dead and truised body of the young ‘Ady
was found fn a yard near the place where
she wae attacked. Posses were imme-
diately C-santzed. No trace could be
found. Large rewards were offered an:l
special de.ectives came from all over
the country. After some time a clew
was secured, and after working faith-
fully for some time, the two negroes wer:
arrested. They were not carried to De-
catur because they would have dern
lynched. They were rent to Birmingham
They were carried to Decatur for tri2l
under escort of the military and they

their death.
Crime of Jackson.

While the people of Devatur were s!'"
talking of the murder of Miss Blood
worth, Will Jack#on, a negro, shot and
killed Officer E. L. Steele, who was -a--
rying him to the lock up. Jackson was
arrested on the charge of being & vagran'

and while en route to jail he snatched
{the officer's pistol and shot him througn
Several people caught nit
could escape. He was nis
jearrted to Birmingham for aafe-keeping
three were convicted at a rpectal

in the afternoon about dark |

JACKSON, Will, black, hanged at Decatur, Alabama, “une 16, 1908,

wits 66% ws Ge ww Gea @ &

SAY CREDIT

| iene nar

That Body Wants Con
lo be Reorgaa

Mational Credit Mien»
Adjourns Session Afte
mending to Congr
Adopt Lam @tmila

Lodge Bill.

Memphis, Temn., June \
three-days’ session the Natio
Association of Credit Men ec
afternoon to meet next ye
more, Md. Officers were ele
lows:

Presdient—O. G. Fessender

Vice Preskient—Frank M. G
ville. °

Secretary-treasurer—Charle:
New York.

The board of directors wa
follows:

Charlies G. Rapp, Philade!
P. Smith, Chicago, and C.
Bt. Paul.

Baltimore was chosen fc
meeting place after Log .
‘withdrawn from the contest

The convention unanimou
a resolution congratulatin
Roosevelt upon his splendid .
endeavor to bring about a
hostilities in the Fer West
tive leadership in the pre
movement. |

Story of Sessi

The last day's session of
convention of Credit Men *®
order promptly at 10 o'cla
dent Standart. Today's pro;
last through the afternoon,
adjournment will be taken.

Today's seasion began wit
communications, after whic
Prendergast, of New York,
tary of the association, del!
dress on ‘‘An Enduring Ne
ruptcy System." |

George E. Ford, of Roch
4chairman of the legislative

were again escorted by the miHtary to |

(presented the report of th)
| expressed cordial approval «
| being made for the reorgan:
‘consular service of the Unit:
resolution was offered reco)
{the fifty-ninth congress the |
the original Lodge bill, or a
cuntaining the followtng 7
visions:

1. Subartitutton of enlaries
2) improved classification
and transfer 0% consular off
-rease of salarsea.

3. Aduption of the mertt s
"amination

apg inimen: ea:
of conenuis
4 Consulg mauct be fami!
the French, German, Spanis
langusge. and y wmacne a}
the natural, gidustrial a

resources of the United Sta
possibtiities
fra.je oO

erence ta The
aud extending the
with (“forefen cous
they are weocredited
S.c0-Leniuire, of

S'ates Me s

Re to

O6T *ZT PUNE *NOILOLILSNOO VLNVILY

a
o

(c/t)

ee
ws

Memo From: WATT ESPY
C/O LAW LIBRARY —:— P. O. BOX 6205 —:— UNIVERSITY, AL. 35486
PHONE (205) 348-5925 ~

George James, hanged at Cullman, Alabama, 8-5-1915,

On Sept, 28, 1979, I spoke with Mr, Bob Higgenbothan,
Route two, box 286, Hanceville, Ala,, 35007 (telephone
mumber 352-5223), a former Assistant Police Chief of
Cullman and a first cousin of James, He gave me the
following informtion conceming this case: James,
lJeyears-old at the time of his execution, was a high
school graduate and the son of a fammer, He farmed
with his father. A neighbor, Enoch Claiburne, had a
black boy living in his house and working on his farm,
James scared the black boy who, in turn, released some

Mules and Claiburne had a warrant issued for the arrest

of James, At the time he was taken into custoyy, James
swore that he would kill Claiburne for having him
arrested. Some time later, James did kill him by shoot-
ing him through a window in Claiburne's house, James!
brother-in-law supposedly was with him at the time and
even though it is not proven and camot be used this
brother-in-law, arrested and subsequently relaased,
allegedly told someone years Later that he had actually
fired the shot (it was not a death bed confession as
Stated in Mrs, Jonest book CULLMAN COUNTY ACROSS THE
YEARS), The story is that the brother in law said

that James pulled the trigger twice and it did not

fire and that the brother-in-law then took the gun,
reloaded it and fired it. Mr, Higgenbotham states that
he was only five years old at the time and that Claiburne
lived near his family's home, He said that his father,
the Chief Deputy Sheriff, had removed one shoe preparator
to going to bed when he head the shot and he put the

shoe back on, saying "George James has just killed Enoch MM

mtg

Claiourne,"* It was his duty, the next day, to arrest
James, the son of his sister for this murder, Mr, Higg=
enbotham states that even though he was drinking at the
time of the murder, James was not drunk,

ig.
2

ALABAMA JOURNAL Combined Dee. 1,

A
Montgomery, Ala.,

Sunday Morning, January 25, 1953

5 Sections—do‘

Lange

ty
©
~?

ei, Jatin”

™ which < at al-
‘fod of sounu .€ based
‘ithin easy striking dis-
fery major Japanese
Scarned today on high-
e *Rauthorily.
a who asked not to be
Qaeteeaid the Russian IL28
Sema ers have been ob-
isle 9 ly by U.S. pilots and
“ue-ay S. radar screens.
e best estimates are
wssians have perhaps
‘% and bomber planes,
‘eu dozens of bases on
e4nd and the Kuriles
#4ath of the Japanese is-
Sieg ido.
‘Stave a speed of about

Mmhour and are capabic
t3'4 the atomic bomb.
@icould take them to
the Japanese islands
oir bases.

‘4um bombers arc re-
“areal Soviet threat by
a fenders.

Mf MIG15_ fighters,
1 on the Russian-held
a 4¢¢be only the screen-
this bomber flect
abet strike this empire.
oehgave been parading

sta and forth between
, 30 miles north of
the Kurile Isiand

44 just a step north-
Heglo, the source said.
fgsyo the TL28 jets, the
Ray have quantities of
fight bombers, TU2s,
“in and the Kuriles.
two-engined, pro-

Wa@similar to the U. S.
‘«F4used extensively in
#¢jggainst the Reds in

\Outnumbered
4in Korea, the U.S.
h is charged with
ibility, is greatly

@ northern outposts
‘Spreading chain of
i adar stations,
‘3

A harkh =aSabre jets, slower
See Ginits,

and by ra-
SMnircraft gurs. -'”

ers iNegro Admits .
Raping Woman,

‘
a, Y Ya»

Lo Mis

See Report

es Vrank Jackson
wads City Officers

sing Clothes

Jesse Frank Jackson, 22-year-
old Montgomery Negro, yesterday
admitted the rape of a young
housewife here Wednesday, Po-
lice Chief G. J. Ruppenthal said.
Jackson, who has been held as
a suspect in the case since a few
hours after the woman was at-
tacked at her Perry Hill Road
home about 11 a.m. Wednesday,
was formally booked on the rape
i last night, Ruppenthal
said.

The. confession came after a
questioning session in the city
jail, where ,the Negro has been
held. ;
Ruppenthal quoted the stocky
ptisoner as saying he went to the
‘woman's home to rob her, but
“decided. to rape her after she
signed a $50 check for him.”
Jackson, who already faces.a
grand jury indictment, on an as-
sault to murder charge, and a sec-
ond charge of carrying a con-
cealed weapon, has been moved to
Kilby Prison fov safekeeping.
Ruppenthal said a pair of blue
coveralls which was thought to
have been owned by Jackson,
was a main clue that aided in
obtaining the confession from the
man. , “
The coveralls allegedly were
found in Jackson's possession,
Ruppenthal said. Another set of
coveralls which witnesses were
quoted as saying Jackson wore
on the day of the alleged rape
could not be located by police.
After yesterday's questioning,
Jackson offered to lead Detective
Cc. J. Cox: and Sgt. George H.
Owen to the missing clothing.
They were found in a row of
shrubbery between the Atlanta
highway and Perry Hull Road,
where the Negro allegedly ad-
mitted he placed them aiter the
rape attack, Ruppenthal said.
Jackson wore other outer cloth-
ing under the coveralls, he said.

ing to the police.

'trolman Elmer Dennis.

house. for several hours.

Jackson told policemen that the
woman’s baby was playing in the
room as he attacked her, accord-

Jackson’s arrest came as a vre-
sult of a “tip” received by Pa-

Dennis. watched the suspect’s
Unt-

rent a
Ha
MEATY vs,

Pass

ULLES|

my ik idkat ert
ALLEN WELSH

Yehn Foster’s Brother

To Direct Top-Secret
i

Ceniral Intelligence

By JOHN M. HIGHTOWER
WASHINGTON, Jan, 24 (#—Pres-
ident Eisenhower today added Al-
Ien W. Dulles, veteran diplomat,
lawyer, and intelligence expert, to
the team being formed to master-
mind a cold war offensive against
communism.

Dulles is 59, and a brother of
Iisenhower’s secretary of state,
John Foster Dulles, who is 64. He
was designated by the President to
be direetor of the Central Intelli-
gence Agency—the super-secret or-
ganization charged with keeping
up on developments behind the
Iron Curtain.

The White House announced that
Dulles’ nomination will go to the
Senate as soon as Gen. Walter Be-
dell Smith, present CIA director,
is confirmed as undersecretary of
state.

Cabell Nomination Expected

Dulles who has heen a_ well
known and popular figure in both
the old and new administrations,
now is deputy CIA chief, and to
succeed him in that post Lisen-
hower intends to designate Lt. Gen.
Charlas P, Cabell, now director of
the staff which serves the Joint
Chiefs of Staff in the Defense De-
partment. ‘

‘The ‘Dulles appointment had
been expected since before the
inauguration when it became
known that Gen, Smith would move
into the State Department as top
policy man under John Foster

War Proolems

ClaimAttention

Of President

Callers Who Discuss -

WASHINGTON, ‘Jan. 24 (A —
four hours of desk work concerned;
mainly with war—the hot one in
the Orient and the cold one the

world over.

9 a.m. and quit at 1 p.m. Aides
said that as a general thing, he
would try to take Saturday after-
noons and Sundays off to rest up
for full work days during the
week.
The President’s first caller today
was Lt. Gen. Maxwell D. Taylor,
who leaves Monday for Korea to
take command of the Eighth
Army. He succeeds Gen. James
A. Van Flect, who is retiring.
Taylor, questioned later by news-
men, said he got a “‘great lift’? out
of talking with Eisenhower, under
whose command he served in the
World War If invasion of Norman-
dy, It was a “safe assumption,”’
he said, that Korea was discussed,
but he would not elaborate.

— Other Callers Significant

Two other callers—Deputy Di-
rector Allen W. Dulles of the Cen-
tral Intelligence Agency and_ Lt.
Gen. Charles P. Cabell, staff direc-
tor of the Joint Chiefs of Stafi—
figured in White House announce-
ments.

Dulles was chosen to succeed

Whole World Situation |;

President Eisenhower today put in}:

The new President checked in at =

Cen. Walter Bedell Smith as chief
of the CIA. Cabell will drew Dul-
les’ present job as CIA deputy.
Smith has been nominated to be-
come undersecretary of state.

Dr. Edward L. R. Elson, pastor
of the National Presbyterian
Church, also called. Eisenhower

“eeaLow, commander

(See NEGBO ADMITS, Page 8-A)

Dulles, Nevertheless it fits into a
, t by “ ty 44 anecs a oe

Atearmm ant

will attend services at the church

{

saa Aen

Close Of Week Brings), .

Top
Slate
To

Genei
For °

Set PF

WASHIS
Gen. Anti
of the Bat
today hee
in the Ar
shift in th

A pla
Army Chi
ton Collir
Korean }
Auliffe
that the
Gen. Max
chicf of |
administr.

Taylor
Korea to
the Eight
James A

re
the amou?*..%!

(
{hk

The con
sbey
ring

Bu
shift. frony3:
oduz

HOBBY

CULP

, A :

.
1

: ag -

: fom ch aos

money has

lone: a
she u Scie ay
f ‘

eee ages

ary, ©

vided for}*~

Ea sls Ws
fe os Foes

a * Pr 9.
eeE fx
ONE,

&
¥

“Durin:

y
es
«
O

ny
2ory

tiscal dat
ithout
S
get ries
The Li

adding:

tM
o
—
—
vo
c

play ch
covered
which
comin

adi!

rire

pad

o a
Wi

in
last| W
at

old|&nd_ car
plea} mittee so
“om
t his cell until he! Health,

Y
a

sons|omies in

Thejthat las

salm
at 7:56 p.m, and|entirely

s the Negro

ea
in the{bud

died
chair

pped
son: thanked prison offi-|

ir kind t

le 23rd P
d Hold
reatment of him

Gordon Per

kson, 23-year
y, showed no emotion f

the chair.

£
re

+
v

egro rapist,
Ss electric

as pronounced dead

kson’s request a
e

was strapped ‘in
was his request,

mercy by Gov.
“Precious Lor
re he was stra

A minister read ¢}
hursda

The Negro, who was denied a

Tn IKGlby Cha

1€ minute -he le
Befor
hair, ‘Jack

switch was thrown

Jackson w
was electrocuted,

8:01.

Vv
oO
>
>.
od a8
a, CD PRG REE
| Oe 9 5 5
qm QD. .& wD >43 Re
Jz er a. SESS
pat ae
OMS oO
2 poke. es ae ho as ~ a
eESosys Sae0382 ge
. ca) an ro}
sOBLsxs i i ee ae
= 2 FeksurAgak s
Ose, OPO Sere Sea
safes See™ 2 oe...
~~ , x MWOog oo oO
SS (Sat A See os
2 ate ee S =
ee pS os a. ter, a w
Saco ns wn

re Purcell/T
~4Cials for, th

; i?

in the
ie

announced | fo

East Tal
oes to St
*s Chapel
to be sup-

a
o
.

2
es ain

“hiversity

a Pen

o 3 Bey, foehngee ESE ge Oe

i ey sor Sac ) 5
AOS Bro SS ais Te tage
AH ww 42098 8S we - : :
-mQ So. ac : =
oo wo Mw Sts
eos ¥r (So) ¥ i
zo 5 goa c ot se
> oo se we]
SLAMS QLOS uO en oe
Mm™HBSOSB GOK a pem joey |
mt : ! . ‘

2 eres sse ee ob MN cues
coke "Be BRAG SS GOlagns m 6) Sa &
aes _

q @ Siw a EP ae Bea Bo a) oo o8
> Oma Oog = " oO pe ® ¢: mL A
ase 7 = Sa oo = Lm ft on
82 yee fe] fie<3, wy Bee?

3: Oa ws 5 SSL ALD, : 3
5 ee Ww nde at) lta! ‘
#28 SHfeuG pORSZE Tr z;
= é Senzass § GS Bs w is <
Bu'5 See ho EB WHR,°51 Bi, ee ee
&_. ~~ . om = = Le so) & Ser]
To oc p~ ees, OS oO > fas}
“EOD SR ESOS oon Seg” po a
>: = DLE, e°f&SAS. Se ; lag.“
wo Snr oes ZmeS GSE oe ro
J . o] of tm c
SESs Eo ous S@2So085] OF 5
B GaenoeeZedy oo = Oo Fn iemea & ot
o9 ~O SHS wos y 3) ,3s ur CD) Le
= Se FS 2 _Sa sao; ss =~
So ~ ~ = ch eg .
SSSR EPaE "3 wow 8 vos ww oS Db
i -
AR SeSonms. So Pur ype! 2S tls
fe nV VG > Haw Be So EcvD
S>agysozR Es "5 SBeex<E&S WS ee
Besse. $e le2-8__es nq HOE”
6S 5 & i se == ol
BEES eleagsg sho sgeh aS -£52
aids sSSSSs2 S2ES85 x g585
; = Sr ' —_
leeaee 2438FS $Us=S
. a 0 PS ss oles arn
ce ~ 2 OD ope
: moe eee toc fS ee
Be oOots VOUSG So
GeuF§ ; ere ee eo
beast — FR tees Tee

ja itied A

ed The
being bey be

rte
pe?

+ 4
hee okie e
des J

e
Sora} Grey Bases
; i
gp iks 1
x

(RAGE,

eee to}

Pe P ae

Re rte
LEP aac ate

° Te
smuggling ore sam-|Wade, }

est Berlin, the report} hs ff

; : N

ering informati

to W

The group w

said,

-/ples

“aty|telligence and

1 Bk ye! i
be ee

aye

“ptist

er bo th

;omh yi ot
YeRSOT,

} ; ». o¥tel BEY*
Bian R, West-
River FEdse, Noi.: one
s. Mrs. Francis Westcott
Arlington, ‘“Sm=-sir sis-

4. Elizabeth Andrew
rie of Montromery and
eechildren. Funeral serv-
' be held from St. John’s
3} Church at 3:30 Sunday
¥v¥, dames W. Brettman
vd. Interment will be in

Cemetery. The pall-

will be: Dr. William Vir-|

nk Virgin, Davis Stakly
rJes Abercrombie, Clyde
. George Mark Wood Sr.,
Peo Sr, and Churchill
emory Chapel di-

. Lt. Rogers B., Jr. The
: of Lt. Collier arrived
dgomery Saturday at
He was killed in
a Korea in September,
iviving are the widow,
voby Jean Collier; two
bert Louis and Rogers

‘er JI, all of Montgom-
1

mother, Mrs. Mary
ollier; two sisters, Mrs.
‘ady and Miss Sara Col-

>» brother, James Lamar
all of Dothan,. Ala. Fu-}
‘rvices will be held Sun-

2 pm. from: Leak-
Chapel. with Minister

erryman officiating. In-

will be in Greenwood

‘| military honors. Leak-
’ Chapel directing.

rs. Mary ., 76. A resi-

1906 Highland Ave. and
er of the Highland Ave-
Church, passed
saturday afternoon = at
cence following an ex-
illness. Surviving are
ighters, Mrs. Bernice A.
y‘and Mrs. Alton M.,
of Montgomery
- son, Robert Lawrence

. Montgomery. Funeral

will he held Monday
n Leak-Memory
’ Dr. Henry L.
Ouiciating. Interment
in’ Greenwood with
emory Chapel directing.

*
is

TE CHAPEL.

JRDEN—G, E, VICKREY

Bed 0 apace

| The progress beyond this would
be fo Make the Kremlin uncertain
of ifs control over the satellite
nations and eventually, by a peace-
ful means such as moral and prop-
aganda pressures, to rotl back

the Far Fast,

William H. Jackson of Princeton,
N.J., a former CIA deputy direc-
tor, World War II intelligence of-
ficer and now an investment bank-
cr, has been chosen to make a

striking at an opponent with ideas.
Jackson is to head a reorganized
and expanded psychological war-
fare agency, replacing the present
Truman - created interdepartment-
al committee.

the White House today, accom-
panied by C, D. Jackson (no
relation), editor-on-leave of For-
tune magazine. The latter was on
Eisenhower’s research and speech
writing staff during the campaign.
Neither Jackson would discuss the
purpose of the visit.

The National Security Council,
also created during the Truman
administration, has consisted pri-
marily of the heads of the State
and Defense Departments, and
such other government agencies
as might be involved in a particu-
lar policy. problem, under the
President as chairman and with
the vice president as a member.

clearing house for policy decisions
involving foreign relations. Per-
sons familiar with the plans now
being shaped say it is to be ex-
panded and converted into a
planning agency able to draw upon
resources of all regular govern-
ment departments but unhampered
by normal administrative and
operating responsibilities.

This expansion, according to
available information, will consist
of adding to the National Security
Council several persons of out-
standing ability who will be in ef-
fect ‘‘ministers without portfolio”
and who will have the task of
figuring broad policy measures to
‘recommend to the President.

Allen Dulles, like his brother,
'has years of experience and prepa-
‘ration behind him.

He was trained as a

lawyer and

‘that

Soviet penetration in Europe andj:

study of America’s operations in}
the field of psychological strategy,|hower was working on his State
which is essentially the business ofi of the Union message to the joint

It has served mainly as a kind of]

he wa. piutling tae. present
20 agencies into four general
groups, the heads of which would
report personally to him. And he
said:
“The Department of Agriculture
.. is getting an overhauling. In
these fimes of unprecedented pub-
lic debt and continuing high fed-
eral expenditures, the public right-
fully expects us to put forth even
greater effort to effect savings in
government operations and to re-
duce public expense.”
Over at the White House, Eisen-

houses of Congress.
Next Message Awaited
It holds unusual interest. He did
not go into domestic questions, in
depth, in his inaugural address.
Consequently, Congress is excep-

Jaékson called on Eisenhower at | {ionally eager to hear what he will

have to say, especially in three
vast fields—taxation and the budg-
et, controls and allocation and
priority, and the Taft-Hartley Act.

They all contain potential news

of conflict between the President
and the legislators, The patterns
today look like this:
‘Taxation Eisenhower cam-
paigned on a program that includ-
ed cutting taxes. He also advocated
balancing the budget. Probably—
although. he has given no indica-
tion—he would favor the latter be-
fore cutting taxes, ;

But Daniel Reed (R-NY) chair-
man of the House Ways and Means
Committee, has gone on record for
a quick reduction of taxes on per-
sonal incomes, The excess profits
tax for corporations expires July 1
this year. On personal incomes, the
rate gocs down by 5% per cent
next Jan. 1. Reed says it should
go down at the same time with the
corporation tax,

However, if Eisenhower gives
priority to balancing the budget, a
cut in personal taxes might not be
feasible. A fight could easily devel-
op.

Controls Appear Doomed

Controls—Restrictions on wages,
prices and rents are scheduled to
expire April 30. There is a strong
‘let-’em-die’’ sentiment reported
among congressmen, The law that
provides these controls could be
killed even before April 30, and the
belief is that some Democrats, for
political reasons, would vote with
tep ubl i cans Ww He want to en

faclory dave cn ite a
named Finogenova.
He neglected to mention that|

Finogenova was his first wife, dead!
since 1949, |

Finogenova was hired and her:
time card regularly appeared. Ev-
lery payday Bogdanov collected her;
salary.

Then he got another idea. He en-
tered the name of his present wife,
Uskova, on the payroll and collect-
ed her salary too, At this point,
factory officials decided to check.

N egro Admits

(Continued from Page 1)

dentified sources told him that;
Jackson allegedly used the name]
“Frank Brown” which was used
ina check which the Negro rapist
forced the woman to sign. The
check was dropped at the wom-|
an’s home
Dennis assisted C. J. Cox and
J. May in making the arrest.
Assistant Solicitor Robert Stew-
art recorded the statement made
by Jackson yesterday. The ac-
cused man has signed,the paper
which charges him with the rape,
Ruppenthal said.

State Toxicologist C. J. Rehling
aided city police in the investiga-
tion.

—

Kentucky 8th Largest In 1840
FRANKIFURT, Ky.—In 1840

Kentucky’s population was the,

eighth largest among the states. |

they will be continued, The ‘‘lead-
time period’’—between placing an}
order-and getting into production—}
makes this almost mandatory, es-
pecially in the field of arms pro-
duction.

Hence there have been recom-
mendations from both military and
industrial quarters to extend the
present system of allocation and
priority of materials.

T-H Amendments Expected

Taft-Hartley-Eisenhower already:
has talked with his new secretary;

H. Alexander Smith (R-NJ), echair-!|

President said during the cam-|
paign he was in favor of armnend-
ing the law.

These fields — along with ques-'
ioning a} Co futures of fa wai a

of labor, Martin Durkin, and Sen.|¢

man of the labor committee. The! ®

registrations «
Polled Shorthe
east have incre:
cent in three y:
On the evenin
will be a bangu
the association :
at 7 o'clock. [|
in livestock im}
vited to attend

The mornin;
judged by Robe
stock specialis

sale, to begin =
be conducted

Montgomery, a
Tulsa, Okla., ai

U.S. Steel
Huge Post

PITTSBURG}
United States
is tapering off
expansion prog:
estimated _ bill
boosted the con
ing capacity fre
tons a year.

Expansion on
reached their ")
maxed by the e
new, integrate
Morrisville, Pa.
River. This 4.
plant now is
pleted,

In the five yr
Day, the wor
company incre:
make steel by,
After the out
hostilities, anot}
gram was pile
earlier work,

The expansi
been hampered
ing costs. For

jend of 1948 the

finishing wori
was 128 million
the original est

ST a ek ee

‘

f Nati

JACKSON» Mack, black, 23, electrocuted Alabama (Jefferson) August 18, 1939.

Bees

eR eee ~ Seok 0 Gu Ted Aeyorint wcll 4 -l) WR 5-14-30

ted Melew F/E-( 947
Macle 0 etahonanT Ad, oe goon

‘ a
(Ala.

'Y¥-~TivI-
.

with the
ity, that
etent. be-

0) ul
113, sue,

»
[DENCE—

‘nt of ac-

id eonfin- .

hawn in
iccoinpa-
ut, dura-
ler,

lomicide,

Or.

‘e killing

‘Ss not to

t per se

. of not
plea of

‘omicide,
241.)

> Sn 294

that, at
duet and
y unbal-
‘uences,
ning the
ling, and
ration of
. of law.
Criminal
ree. Dig.
>; Dee

“tat ae.

ac
at the

d at the:

juestion
if, after
ea ren-
ey must
ise mis-
cause of
evidence

1 of not

omicide, ;

' — IN-

murder
lrunk or
turn a
i ;

omicide,
ONABLE
accused,
he jury
pr@eperly
al Law,

b 1877,
i, 1960,

‘days prior to the killing?”

Ala.) JAMES v. STATE 571

On Rehearing.

21. Homrorpe €==180 — Inrox1caTIon — Evr-
DENCE—ADMISSIRILITY,

‘Where there is evidence of drunkenness of
accused, its probable degree may be illustrated
by showing that it was immediately preceded by
protracted and heavy drinking, though proof of
the latter fact alone does not prima facie show
that it was in fact followed by any degree of
drunkenness or insanity at the time of the com-
mission of the offense charged.

(Ed. Note—For other cases, see Homicide,
Cent. Dig. § 381; Dee. Dig. @180.]
22. CRIMINAL LAW ¢==451—INSANITY—EVI-
DENCE—ADMISSIBILITY.

Whether accused, relying on insanity pro-
duced by intoxication, looked natural or unnat-
ural just before the commission of the crime
charged, may not be proved to show insanity,
though a witness, observing a person’s facial
expression, is generally allowed to say that it
indicated any of the ordinary and familiar men-
tal emotions or physical sensations.

[Iid. Note—For other cases, see Criminal
Ne Cent. Dig. §§ 1040-1042; Dec. Dig. @=
451.

Appeal from Circuit Court, Cullman Coun-
ty; D. W. Speake, Judge.

George James was convicted of murder in
the first degree, and he appeals. Aflirmed,
and application for rehearing denied.

Aside from the general issue, defendant al-
80 interposed the plea of not guilty by rea-
son of insanity. Defendant was 18 years of
age at the time of the killing, and the undis-
puted evidence sbows that he entertained
sentiments of hostility toward deceased, and
that he killed him at night with a shotgun
furtively fired through a window, while de-
«eased was in his own home and seated in
the midst of his family.

The state’s witness Aaron testified on the
cross-examination that defendant was at
witness’ house just before the murder; that
he was drinking, and had a bottle of whisky,
but he could not say he was drunk—he could
Walk straight, and he smelt whisky on his
breath. he trial judge excluded defend-
gnt’s question: “Did he offer you a drink?’
The witness further stated that he had
known defendant for 10 years, and that prior
to the Killing, and shortly before that occa-
sion defendant passed him several times and
looked like he had been drinking. The trial
judge then excluded the following questions:

“What was his condition with reference to
whether or not he had been drinking?’ ‘Ilad
he not been drinking pretty heavily for several
“Vell the jury
whether or not (just before the killing) in your
opinion, the defendant was so much intoxicited
as to be wholly unconscious of his acts.” ‘And
tell the jury, in your opinion, whether you con-
sidered him (at that time) mentally unbalanced.”

The state’s witness McCoy testified on
cross-examination, that he did not see defend-
ant on the day of the killing, but had seen
him frequently before that, and that he was
Well acquainted with the family of the moth-
er of defendant, the Higgenbothams. ‘The
trial judge then excluded these questions:

“Insanity runs in the Tliggenhbotham family,
doesn’t it?’ “Lhe defendant’s mother and sister
were sent to the asylum, were they not?’ “On
other occasions, when he was drunk, was he so
drunk as to be unconscious?”

Defendant’s father testified for him that
defendant had a spell of fever the year be-
fore, and also that he drank a good deal.
The trial judge then excluded the following
questions asked by defendant:

“Since that fever, has his mind been very
strong or not?” “Since that fever, have you seen
any acts of insanity?” ‘While in that condi-
tion [drinking]: (1) Is his reason dethroned?
(2) Does he display any acts of insanity? (8)
Is he responsible for what he does?”

Defendant’s mother testified for him that
she was present “Christmas a year ago”
when he and his father had some trouble,
and defendant was drunk, wild as a bear,
and, further, that nobody could do anything
with him like he is when he is drinking; ai-
fects his mind; don’t know anybody.” The
judge excluded the expressions, “no one could
do anything with him,” and “affects his mind.”
The witness further stated that defendant
nearly died the year before, and was in bed
three weeks with a spell of fever. ‘The court
then excluded the following question asked
by defendant: “What was the condition of
his mind after he got up?’ He also exclud-
ed questions as to whether insanity ran in
witness’ family, and whether his sister is not
now insane, and confined in the lunatic asy-
lum at Tusealoosa.

The following charges were refused to de-
fendant:

(1) “If you believe from the evidence that at
the time the fatal) shot was fired by defendant
that his conduct and acts were such that he was
so mentally unbalanced or insane that he did
not know the consequences, then you should
take such into consideration in determining your
verdict.”

(2) “If you believe from the evidence that al-
though you believed beyond all reasonable doubt
that defendant is guilty of murder in the first
degree, yet if you believe from the evidence that
defendant was so mentally unbalanced that he
did not know the consequences of hig act, you
should find him not guilty.”

(3) “Evidence that the accused was intoxicat-
ed at the time of the killing, if you find such
evidence has been offered in this case, is admit-
ted for your consideration as bearing on the
question of premeditation and deliberation; and
if after a careful consideration of all the facts
and circumstances in the case you have a rea-
sonable doubt of defendant’s guilt, you should
find him not guilty.”

(4) “If you believe from the evidence that, at
the time the alleged fatal shot was fired by de-
fendant, he was drunk or mentally unbalanced
to such an extent as to cause defendant to turn
a deaf ear to reason, you should not conyict de
fendant of murder in the first degree.”

(5) “While defendant is required to prove that
he was of unsound mind at the time of the homi-
cide by the preponderance of the evidence, it
is also true that upon the consideration of the
testimony of the whole case, the state’s as well
as the defendant’s, if any reasonable doubt re-
mained in the minds of the jury, the verdict
should be not guilty.”

(6) “The legal presumption of sanity may be
overcome by evidence tending to prove insanity

G=for other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

572

of the aecused, which is sufficient to raise a
reasonable doubt of his sanity at the time of the
commission of the act for which he is sought to
be held accountable; but when that is done the
presumption of sanity ceases, and the burden
is upon the state, which is then required to
prove his sanity, as an element necessary to
constitute crime, beyond a reasonable doubt.”

Daniel W. Troy and J. Talbert Letcher,
both of Montgomery, P. M. Brindley, of Hart-
sells, and C. L. Price, of New 'Decatur, for
appellant. W. L. Martin, Atty. Gen., and J.
Il, Mudd, Asst. Atty. Gen., for the State.

SOMERVILLE, J. [1,2] It was competent
for the defendant to show that he was intox-
icated to such a degree as to render him at
the time of the killing incapable of under-
standing that he was committing a crime;
this for the purpose only of disproving the
existence of the specific intent or mental
state which is an essential ingredient of
murder. Waldrop vy. State, 185 Ala. 20, 64
South. 80; Walker y. State, 91 Ala. 76, 9
South. 87. But it was not competent for de-
fendant’s witnesses to testify that his intoxi-
cation produced that result, since that was a
conclusion to be drawn by the jury from the
evidence. Armor y. State, 63 Ala. 178.

[3-5] Lhe fact that defendant offered the
witness Aaron a drink shortly before the
killing was not material, and was properly
excluded. And the mere fact that he had
been drinking at other times had no tenden-
cy to show his incapacity to commit murder
on the occasion in question; hence the ques-
tions to Aaron as to defendant’s condition
with ,reference to whether he was drinking
on prior occasions were properly excluded.
But the ruling was harmless in any case, as
the witness had already testified that de-
fendant looked like he was drinking. It
may be that, had defendant offered to show
that he had been “drinking pretty heavily
for several days prior to the killing,” with
the explanation that he proposed to show
fixed insanity as a result of long-continued
drunken habits, this would have been com-
petent as a link in such a chain of proof.
But this purpose did not appear. Upon the
predicate merely that defendant ‘was drink-
ing and acting queerly just before the kill
ing, the trial judge properly refused to al-
low this witness to say whether be consid-
ered him “mentally unbalanced” at that time.

[6-7] That defendant’s mind had not been
“very strong” since he had the fever the year
before was obviously a mere opinion of the
witness (defendant’s father), and was of no
probative value upon the issue of insanity
vel non. Its exclusion was proper. Nor
could the witness state ‘that he had seen
“acts of insanity” since the fever. THe should
have stated what acts of defendant he had
seen, and then he might properly have giv-
en his opinion as to his insanity. Rembert
v. Brown, 14 Ala. 360. ,

[8] So it was not permissible for this wit-

69 SOUTHERN RWPORTER

(Ala.

ness to state that while defendant is drink-

ing his reason is dethroned, or that he dis: —

plays acts of insanity, or that he is not re:
sponsible for what he does. Heninburg v.
State, 153 Ala. 18, 45 South. 246. Tven if
general results, thus drawn by the witness
from other occasions, were relevant, these
were conclusions to be drawn by the jury
and not by the witness.

anything with him was clearly irrelevant,
and was properly excluded.

We have examined with due care all of
the excluded testimony offered by defendant

to show ineapacity to commit murder, or to |

support his plea of insanity. In every case
it was properly excluded, either because it
related to irrelevant occasions, or was inad-
missible opinion, or because the witness giv-
ing his opinion omitted the necessary predi-
cate of facts, or was not sufficiently quali-
fied by observation and knowledge. Parrish
v. State, 189 Ala. 28, 42, 86 South. 1012;
Dominick y. Randolph, 124 Ala. 557, 564, 27
South. 481; Odom v. State, 174 Ala. 4, 56
South. 915; Heningburg v. State, 153 Ala. 13,
43 South. 246.

[10] In this connection it is to be noted
that insane conduct or mania resulting mere
ly from present intoxication is not the in-
sanity which excuses crime. Gunter v,
State, 88 Ala. 96, 109, 3 South. 600; Parrish
v. State, 189 Ala. 47, 36 South. 1012; Bus-
well on Insanity, 449. All of the alleged
abnormal conduct and conditions of defend-
ant, offered to be shown by the several wit-
nesses, were directly associated with present

i NN SEE RE A Se ENE I ay res Sag ss ligt Ninn as

drunkenness, excepting only the instance of ~ .

fever above referred to. So there was in
fact no evidence before the court tending to
show any fixed insanity, resulting from
drunken habits or otherwise.

[11] In some of the early cases it has been
held that proof of insanity among the rela-
tions of the defendant is admissible only in
connection with expert testimony that in-
sanity is in fact hereditary. Regina v. Tuck-
ert, 1 Cox C. GC. 105; State v. Simms, 68 Mo.
805. We think, however, that courts must
now judicially know, as an established truth
of medical science, that many forms of in-
sanity—or, at least, the physical and neurot-
ic conditions which tend to produce or invite
such forms—are transmissible from parents
to children,. and may recur in the various
individuals collaterally descended from a
common source.
9, 97 Am. Dec. 162, and note, 174; Baxter v.
Abbott, 7 Gray (Mass.) 71, 81.

[12] But, while evidence of the insanity of
one or more members of the: defendant's
family, immediate or collateral, is admisst-
ble to show the hereditary taint in his own
blood, such evidence is never admissible, ex-
cept in connection with other evidence di-
rectly tending to show that the defendant is

People v. Garbutt, 17 Mich. :

* -(Ala,

‘t is drink-
hatehe dis-
» is not re-
‘ninburg v.
bea op it
hq 1eSS
/ Va., _lese
y the jury
‘
r occasion
ly eould do
irrelevant,

care all of
defendant
irder, or to
every case
because it
r was inad-
vitness giv-
sary predi-
utly quali-
2. Parrish
uth. 1012;
D7, 564, 27
| Ala. 4, 56
153 Ala, 18,

® be noted
‘ting mere-
not the in-
Gunter vy.
0; Parrish
1012; Bus-
he alleged
of defend-
overal wit-
ith present

ins of.

‘re in
t Crusis to
‘ting from

if has been
' the rela-
ble only in

that in-

av. Tucks.

ins, 68 Mo.
urts must
shed truth
rms of in-
nd neurot-
e or invite
mm parents
ie varioua
d from a
t, 17 Mich,
4 Baxter v.

insanity of
lofendant’s
s mdimissls
in his own
issible, OX>
idence ab
féndant ta

Ala.) JAMES y. STAT 573

himself insane. State v. Cunningham, 72 N.
C. 469; Laros v. Com., 84 Pa. 200, 209; State
v. Van Tassel, 103 Iowa, 11, 72 N. W. 497 ;
Watts v. State, 99 Md. 30, 57 Atl. 542; Peo-
Ple v. Smith, 31 Cal. 466; Murphy v. Com.,
92 Ky. 485, 18 S. W. 163; Snow v. Benton,
28 Ill. 306; Guiteau’s Case (D. C.) 10 Fed.
161, 167; Whart. & Stille’s Med. Jur. § 377;
Clev. Med. Jur. of Ins. 528. Tor, as said by
Bynum, J., in State y. Cunningham, supra:

“To: allow such evidence to go to the jury as
independent proof of the insanity of the prison-
er would be of the most dangerous consequence
to the due administration of criminal justice,
since there are but few persons, it is ascertained,
who have not had ancestors or blood relations,
hear or remote, affected by some degree of men-
tal aberration.”

But, independently of this consideration,
the questions by which defendant sought to
show hereditary insanity were either inapt
or legally objectionable.

[13] The fact that defendant’s mother and
a maternal aunt “were sent to the asylum,”
there being nothing to show what sort of
asylum they were sent to, why they were
sent, and what was their mental condition at
the time, was patently inadmissible.

[14] So, also, the opinions of witnesses,
however well acquainted they might be with
defendant’s maternal relatives, that “insan-
ity runs in the family,” were utterly incom-
petent, not only because they were mere con-
clusions, but because the witnesses were not
qualified to give their opinions on such a
subject.

[15] Defendant offered to show by his
mother that her sister is “now insane, and
confined in the lunatic asylum at Tusca-
loosa.” It may be that the bare fact that a
parent of the defendant is insane and under
confinement on that account would be ad-
uissible as tending to show hereditary in-
sanity in the defendant, which, however, we
need not now decide; but we think the bare
fact that a maternal aunt is insane, and con-
fined in an insane asylum, without any evi-
dence to show the nature, extent, duration,
or symptoms of her mental disorder, and
hothing to suggest that it has arisen from
cluses or conditions which are transmis-
sible, as distinguished from those which are
purely personal or ephemeral, does not fur-
nish any rational basis upon which the jury
could infer the existence of hereditary in-
sinity in the family of the defendant.

‘Tt is doubtless the general and well-estab-

fF ished rule that, where the mental soundness of
» an individual is in question, the sanity of the

blood relations in the ancestral line may be
shown as tending to establish the fact in issue

# (Walsh v. People, 88 N. ¥. 458); but that rule

does not permit indiscriminate and unexplained
evidence of diseases afflicting such relations and
affecting their mental faculties. There must be
tvidence tending to show at least that such
disenses are hereditary or transmissible. Reich:
tbach v. Ruddach, 127 Pa. 064, 18 Atl. 432;

| State v. Van Tassel, 103 Towa, 6, 72 N. W. 497.

known us ‘general paresis’ depends to a great
extent upon the conditions underlying the dis-
case. * * * Whether the particular form of
the disease from which the testatrix and her
family suffered was of such a transmissible
character that she might be said to have derived
it from her ancestors cannot be determined from
the evidence in the record, and it fs therefore
difficult to see how the testimony of the physi-
cians (that her mother and brother were afflict-
ed with general paresis) was really pertinent
to the issue whether the testatrix was possessed
of testamentary capacity.” Matter of Myer, 184
N. Y. 54, 76 N. E. 920, 6 Ann. Cas. 26, and
note collecting the authorities. :

(16,17] Charge 1, refused to defendant, in-
structs the jury that if, “at the time the fatal
shot was fired by the defendant, his conduct
and acts were such that he was so mentally
unbalanced or insane that he did not know
the consequences, then you should take such
into consideration in determining your ver-
dict.” The fact that one who kills is at the
time so mentally unbalanced as not to know

the consequences is not per se a palliation of
murder under the plea of not guilty, nor is

* * * Tt is a scientific faet of common knowl-
tdge that the transmissibility of the malady

it an excuse therefor under the plea of in-
sanity... A man’s mind mnmay be temporarily
unbalanced by fear, or hatred, or other caus-
es, not associated with mental disease; and
equally the most intelligent and responsible
man may not perceive all the consequences
of his act. Neither of these phrases is apt,
and the charge could only have misled and
confused the jury. Moreover, it is objection-
able as singling out evidence for the consid-
eration of the jury, without stating any
proposition of law.

Refused charge 2 requires a verdict of not
Suilty if defendant “was so mentally unbal-
anced that he did not know the consequences
of his acts,” and was properly refused for
reasons just above stated. The legal tests
of criminal irresponsibility by reason of in-
sanity have been frequently stated and ap-
plied in accordance with the leading case of
Parsons vy. State, 81 Ala. 577, 2 South. 854,
60 Am. Rep. 193, and we need not now re-
state the law. However, this charge was
fully covered by defendant's given charge 4.

[18] Refused charge 3 is palpably mis-
leading in its suggestion of complete acquit-
tal because of defendant’s intoxication. On
the undisputed evidence there could be no ac-
quittal on the plea of not guilty.

[19] Refused charge 4 requires an ac-
quittal of murder in the first degree, if the
defendant was so drunk or mentally unbal-
anced as “to cause him to turn a deaf ear to
reason.” Its refusal was proper, and needs
no comment.

[20] Refused charges 5 and 6 require the
acquittal of defendant, if the evidence leaves
in the mind of the jury any reasonable doubt
of his sanity. This is not the law in this
state, and these charges could not be proper-
ly given,

An examination of the entire record dis-
closes no error of law of which defendant

‘ .
Ms
i aN
“i 1
rl ie.
a
is
‘ a

&
oe
€ ae a

ia, '
a¢ f
|

DANA -

ALA
AILAVDAINSI

Biiyiing

FINIVCDCITY nc
1d Ur

574

can complain, and the judgment must be af-
firmed.
Aflirmed. All the Justices concur.

On Rehearing.

SOMERVILLE, J. We have examined
with due care the several questions now
urged for our reconsideration.

[21] 1. It must be observed that, at the
stage of the trial when the court excluded

the defendant’s question to the state’s witness.

Aaron, “Iliad he not been drinking pretty
heavily for several days previous to the kill-
ing?” there was no testimony before the
court that defendant was drunk in any de-
gree on the day of the killing, nor at any
other time. It is, of course, to be conceded
that, when there is evidence of drunkenness,
its probable degree may be illustrated by
showing that it was immediately preceded
by protracted and heavy drinking, yet proof
of the latter fact alone does not even prima
facie show that it was in fact followed by
uny degree of drunkenness or insanity. See
Snead vy. Scott, 182 Ala. 97, 62 South. 86; and
Sharpe v. State, 69 South, 122. Had this
question been propounded at a later stage of
the trial, it might have been error to exclude
it.

2. For the same reason the, defendant's
condition “relative to drinking” on several
occasions shortly preceding the killing, but
disconnected therewith in continuity, was,
when sought to be elicited from this witness,
prima facie irrelevant. Moreover, though
the meaning of this question is somewhat ob-
scure, we are satisfied, as already stated, that
it had been already fairly answered, to the
extent of the witness’ knowledge, by his
statement that on these occasions “he seemed
to be drinking.”

[22] 3. While mental emotions, as well as
physical sensations, are usually exhibited by
facial expressions, and, when relevant, a
witness who observed a person’s facial ex-
pression is generally allowed to say that it
indicated any of the ordinary and familiar
mental emotions or physical sensations which
common knowledge informs us may be thus
visibly indicated (Stone v. Watson, 87 Ala.
279; Camey v. State, 79 Ala. 17; Long y.
Seigel, 177 Ala. 3388, 58 South. 880; Barlow
v. Hamilton, 151 Ala. 634, 44 South. 657, and
cases cited), yet the question of whether a
person looked natural or unnatural does not
come within the reason of that rule. Any
one of a hundred things might cause a per-
son to look unnatural, without in any way
evidencing an insane mental condition. Such
an opinion by this witness was, at least upon
the issues here involved, too vague and too
conjectural as to its significance to be of any
material probative value.

We are impelled to adhere to our conclu-
sions on the original hearing. All the Jus-
tices concur.

69 SOUTHERN REPORTER

(Ala.

COBURN ect al. v. COKE et al. (No. 785.)

(Supreme Court of Alabama. June 18, 1915.
Rehearing Denied July 2, 1915.)
1. CoRPORATIONS €=>642 — Foreign Corpora:
TIONS—‘JENGAGING IN Busriness.”’
The loaning of money by a foreign corpora-
tion and securing its payment by mortgage on

-real estate is “engaging in business” in the state

within the statute, although there be but a single
transaction.
[Iad. Note.—For other cases, see Corporations,
Cent. Dig. §§ 2520-2527; Dee. Dig. 6642,
For other definitions, see Words and Phrases,
First and Second Series, Mngage.]
2. Equity ¢=-66—Maxins—‘‘Hr Woo SEEKS
Equiry Must Do Kquiry.”’

The meaning of the maxim, “He who seeks
equity ‘must do equity,” is that whatever be the
nature of the eontroversy, and whatever the na-
ture of the remedy demanded, the court will not
confer equitable relief upon the party seeking its
aid, unless he acknowledges or will admit and
provide for all the equitable rights and demands
justly belonging to the adversary party, growing
out of, or necessarily involved in, the subject:
matter of the controversy.

[d. Note.—I’or other cases, see Equity, Cent.
Dig. §§ 188-190; Dee. Dig. G66.] Bs
38. Equity €=66—MAXIMs.

The rule that “he who seeks equity must do
equity” applies, whether plaintiff be an adult or
infant, since an infant has no more right than an
adult to seek relief from the acts of others and
at the same time hold the benefits of them.

[Ied. Note.—For other cases, see Equity, Cent.
Dig. §§ 188-190; Dec. Dig. 66.]
4, QuierTING TITLE €34—BiILL—OFrrern To
Do Equity.

‘Where complainant, in a bill for quieting ti
tle under Code 1907, §§ 5443-5449, had borrowed
money from a foreign corporation and given @
mortgage therefor, and such corporation had fail-
ed to comply with the law authorizing it to do
business within the state, such bill would be dit
missed, where complainant failed to amend the
bill by offering to do equity in returning the con:
sideration received.

[Icd. Note.—Ior other cases, see Quieting Tk.
tle, Cent. Dig. §§ 69, 71, 72, 76, T7; Dec. Dig

C34.)

Appeal from Chancery Court, Lauderdak
County; W. H. Simpson, Chancellor.

Suit by Ella Coburn and others again
Rosser J. Coke, as trustee, and others, #
quiet title. From a decree for defendants
plaintiffs appeal. Aflirmed.

Asheratt & Bradshaw, of Florence, for a
pellauts. Mitchell & Hughston, of Florent,
for appellees. aa

THOMAS, J. This appeal presents the
question whether a mortgagor, a citizen a
this state, can obtain a loan of money fret ry
a foreign corporation that has not compliws
with the law authorizing such corporatie
to do business in the state, and then makiy ~~
tain a bill to cancel the mortgage, on Gi
ground that the same is void, without off —
ing to do equity by a return of the mou)
received. Will a bill to quiet title usder ¥
sections 5443-5449 of the Code of 190%, -

such a case, relieve the mortgagor of the Re
ne

@=>lor other cases see same topic and KEY-NU

MBER in all Key-Numbered Digests and Indexes —

Metadata

Containers:: Box 1 (2-Documentation of Executions), Folder 11
Resource Type:: Document
Description:: Jesse Jackson executed on 1954-06-04 in Alabama (AL)
Rights:: In Copyright - Educational Use Permitted
Date Uploaded:: June 27, 2019

Using these materials

Access:: The archives are open to the public and anyone is welcome to visit and view the collections.

Collection restrictions:: Access to this record group is unrestricted.
Collection terms of access:: The researcher assumes full responsibility for conforming with the laws of copyright. Whenever possible, the M.E. Grenander Department of Special Collections and Archives will provide information about copyright owners and other restrictions, but the legal determination ultimately rests with the researcher. Requests for permission to publish material from this collection should be discussed with the Head of Special Collections and Archives.