Barden v. State

• Decision Date: 17 April 1906
• Citation: 145 Ala. 1,40 So. 948
• Parties: BARDEN ET AL. v. STATE.
• Court: Alabama Supreme Court

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. E. Reid, for the State.

DOWDELL J.

The appellants having been acquitted on a former trial of murder in the first degree, of which acquittal they availed themselves by plea, were in the present instance put on trial for murder in the second degree, of which charge they were convicted. In selecting the jury for the trial, and before the same was completed, the jurors on the regular panels were exhausted by reason of challenges by the state and defendant. Thereupon the court ordered the sheriff to summon from the qualified citizens of the county a sufficient number to complete the jury as required by law. Among those so summoned was one D. M. Hardzog, who, being examined on his voir dire touching his qualifications as a juror, testified as follows "That he was a resident householder of the county of Covington and state of Alabama, and had been for the last preceding 12 months; that he was not related by blood or marriage to either of the defendants or the deceased; that he had no interest in the acquittal or conviction of the defendants, and had not made any promise, or given any assurance that he would convict or acquit the defendants and that he had no fixed opinion as to the guilt or innocence of the defendants that would bias his verdict; that he was not on the grand jury that found the indictment against the defendants, and was not on the jury that tried the defendants on the former trial of this cause." The bill of exceptions then further states: "The court thereupon asked said Hardzog in what portion of...