Barden v. State

CourtSupreme Court of Alabama
Writing for the CourtDOWDELL, J.
Citation145 Ala. 1,40 So. 948
Decision Date17 April 1906
PartiesBARDEN ET AL. v. STATE.

40 So. 948

145 Ala. 1

BARDEN ET AL.
v.
STATE.

Supreme Court of Alabama

April 17, 1906


Appeal from Circuit Court, Covington County; H. A. Pearce, Judge.

"To be officially reported."

Rufus Barden and another were convicted of murder in the second degree, and they appeal. Reversed and remanded.

See 38 So. 833.

The defendants, Rufus and Letch Barden, were indicted and tried for the murder of one Wyrosdick by shooting him with a pistol. The evidence of the witness John Stuart was that he and Wyrosdick came to River Falls from Red Level on a certain train, went from the depot towards the store of the Horseshoe Lumber Company, and turned and went to De Vane's bar, where the killing occurred. He further stated that neither he nor Wyrosdick was drunk. The defendant introduced one Henry Stanley, who testified as follows: "I know the defendant. Knew of Wyrosdick in his lifetime. I know John Stuart when I see him. On the night of the killing I was at my sister's in the town of River Falls. Was there when the train came in at that night. This was about one-half mile from the depot and about a quarter of mile from De Vane's saloon. Shortly after the train came in I was going home, and I saw two men going from depot towards the mill yards of the Horseshoe Lumber Company. One of the men was somewhat taller than the other, being about 6 feet in height, and the other was about 5 feet 8 inches in height. The taller man was about the height and build of Wyrosdick, and the shorter about the height and build of Stuart, and he carried a lighted lantern in his hand. I was not close enough to see their faces. They were going in the direction of the Horseshoe Lumber Company's store, and then turned and went in the direction of De Vane's bar, which was not far distant. This was somewhere between 8 and 9 o'clock at night. They seemed to be drunk. Were staggering, and their conversation was loud and boisterous, and I kept out of the way." The solicitor moved to exclude this testimony on the grounds that the witness did not identify the two men as Wyrosdick and Stuart. The court granted the motion, and excluded the testimony. The evidence for the state tended to show that the killing was deliberately done and that it was accompanied by robbery. The evidence for the defendant tended to show that the deceased was attacking the defendants with a knife and had cut them when he was killed.

The defendant requested the court in writing to give the following charges: Charge 8: "I charge you, gentlemen of the jury, that if, from the evidence, there is a reasonable possibility of the innocence of the defendant, you should not convict him." Charge 22: "If you have a reasonable doubt as to whether the testimony of John Stuart and Frank Whitlock is true, you should acquit the defendant." Charge 26: "If the guilt of the defendant depends upon the testimony of the witnesses John Stuart and Frank Whitlock, and the jury believe from the evidence that said witnesses John Stuart and Frank Whitlock were willfully and maliciously false as to any material part of their testimony, then the jury may disregard all of the testimony of said witnesses Stuart and Whitlock, and find the defendants not guilty." Charge 27: "If the guilt of the defendant depends upon the evidence of the witness Frank Whitlock, and the jury believes from the evidence that said witness Frank Whitlock was willfully and maliciously false as to any material part of his said testimony, then the jury may disregard all of the testimony of the said witness, Whitlock, and find the defendant not guilty." Charge 28: "If the guilt of the defendants depends upon the testimony of the witness, John Stuart, and the jury believe from the evidence that said witness Stuart was willfully and maliciously false in any material part of his testimony, then the jury may disregard all of the testimony of said witness, Stuart, and finds the defendants not guilty." Charge 29: "The court charges the jury that the failure of the defendants to testify or offer in evidence the shirt and coat of Rufus Barden on the preliminary examination and in the habeas corpus proceedings cannot be weighed as a circumstance against them on this trial." The defendants were convicted of murder in the second degree, and sentenced to 30 and 10 years, respectively, in the penitentiary.

Powell, Albritton & Albritton and Henry Opp, for appellants.

Massey Wilson, Atty. Gen., and C....

To continue reading

Request your trial
8 practice notes
  • Mullins v. State, 8 Div. 147.
    • United States
    • Alabama Court of Appeals
    • August 19, 1930
    ...v. State, 168 Ala. 55, 52 So. 939; section 8614, Code of Alabama 1923; Williams v. State, 144 Ala. 14, 40 So. 405; Barden et al. v. State, 145 Ala. 1, 40 So. 948; Biggs v. State, 20 Ala. App. 449, 103 So. 706; 35 Corpus Juris, pp. 306, 307, 308. The several rulings of the court on the admis......
  • City of Birmingham v. Lane, 6 Div. 821.
    • United States
    • Supreme Court of Alabama
    • October 18, 1923
    ...So. 3; Schieffelin v. Schieffelin, 127 Ala. 14, 28 So. 687; K. C., etc., Co. v. Ferguson, Adm'r, 143 Ala. 512, 39 So. 348; Barden v. State, 145 Ala. 1, 9, 40 So. 948. It is further established that, if the injured party had notice of the disqualification of the juror, and did not invoke the......
  • Finney v. State, 92
    • United States
    • Alabama Court of Appeals
    • April 14, 1914
    ...try the case had been selected, on account of the dangerous illness of a member of the juror's famly. Code, §§ 7279, 7280; Barden v. State, 145 Ala. 1, 40 So. 948. It was proper to show by the witness who found the tracks near the deceased's body next morning after he was killed the night b......
  • Davis v. State, 8 Div. 843
    • United States
    • Supreme Court of Alabama
    • March 18, 1926
    ...guilt, in the event his plea of self-defense was not allowed to prevail. Neilson v. State, 40 So. 221, 146 Ala. 683; Barden v. State, 40 So. 948, 145 Ala. 1. Some of these facts were testified to by some of the witnesses without objection; but defendant was entitled to have full proof of th......
  • Request a trial to view additional results
8 cases
  • Mullins v. State, 8 Div. 147.
    • United States
    • Alabama Court of Appeals
    • August 19, 1930
    ...v. State, 168 Ala. 55, 52 So. 939; section 8614, Code of Alabama 1923; Williams v. State, 144 Ala. 14, 40 So. 405; Barden et al. v. State, 145 Ala. 1, 40 So. 948; Biggs v. State, 20 Ala. App. 449, 103 So. 706; 35 Corpus Juris, pp. 306, 307, 308. The several rulings of the court on the admis......
  • City of Birmingham v. Lane, 6 Div. 821.
    • United States
    • Supreme Court of Alabama
    • October 18, 1923
    ...So. 3; Schieffelin v. Schieffelin, 127 Ala. 14, 28 So. 687; K. C., etc., Co. v. Ferguson, Adm'r, 143 Ala. 512, 39 So. 348; Barden v. State, 145 Ala. 1, 9, 40 So. 948. It is further established that, if the injured party had notice of the disqualification of the juror, and did not invoke the......
  • Finney v. State, 92
    • United States
    • Alabama Court of Appeals
    • April 14, 1914
    ...try the case had been selected, on account of the dangerous illness of a member of the juror's famly. Code, §§ 7279, 7280; Barden v. State, 145 Ala. 1, 40 So. 948. It was proper to show by the witness who found the tracks near the deceased's body next morning after he was killed the night b......
  • Davis v. State, 8 Div. 843
    • United States
    • Supreme Court of Alabama
    • March 18, 1926
    ...guilt, in the event his plea of self-defense was not allowed to prevail. Neilson v. State, 40 So. 221, 146 Ala. 683; Barden v. State, 40 So. 948, 145 Ala. 1. Some of these facts were testified to by some of the witnesses without objection; but defendant was entitled to have full proof of th......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT