Barnard v. State

• Decision Date: 26 October 1889
• Parties: BARNARD et al. v. STATE.
• Court: Tennessee Supreme Court

12 S.W. 431

88 Tenn. 183

BARNARD et al. v. STATE.

Supreme Court of Tennessee.

October 26, 1889

Error to circuit court, Hancock county; A. J. BROWN, Judge.

Indictment of John Barnard, Clint Barnard, Elisha Barnard, John Barnard and Anderson Barnard for murder. Defendants were convicted and bring error.

Gillemwaters & Fulkerson, Coleman Jarvis, McH. Ross, and Shields & Shields, for plaintiffs in error.

G. W Picke, Kyle, Davis & Drinon, Grant & Jarvis, and Williams & Syler, for the State.

CALDWELL J.

There is very much of human life involved in this case. The plaintiffs in error are under sentence of death for the murder of Henly Sutton, having been convicted in the circuit court of Hancock county. There are five of them,--John, (known as "Big John,") Anderson, and Elisha Barnard, who are brothers; and their cousins, John (called "Little John") and Clint, who are also brothers. They have appealed in error to this court, and, through eminent counsel, seek a reversal and new trial.

Of the many reasons urged for a new trial, we consider, first, the contention that the verdict is not sustained by the evidence. That the prisoners--or one of them, rather--took the life of Sutton is not by them disputed; but it is boldly asserted by them in their evidence, and strongly urged by their counsel in argument, that it was done in self-defense. The state's theory of the homicide is that it was deliberately planned, and perpetrated while lying in wait. The deceased is shown to have been a violent and dangerous man when his passions were aroused, though he was not a quarrelsome or "fussy" man, as some of the witnesses say. It was his habit to go armed, and when killed he had both a gun and a pistol,--the former in his hand, and the latter upon his person. The character of the prisoners for peace and quietude is not shown, further than it appears from their conduct in this case, and from their own testimony that they had serious difficulties with "the Fergusons" twelve months, and with "the Wincklers" six months, before the death of Sutton; in which two difficulties, they say, "shooting was on both sides," and since the latter of which they have habitually carried repeating Winchester rifles, as they themselves testify.

The first fact or circumstance presented in this record as an indication of unfriendliness between Sutton and any of the prisoners is detailed by Big John himself, as follows: "I was out hunting one night. Had a light, and somebody shot at me. I did not know then who it was, but have since learned that it was Sutton. I heard the balls strike, and threw down my light. * * * It was five or six years ago that we were shot at while hunting." Noah Sutton, who was with Big John on the occasion just mentioned, says that they were out hunting; "and while in the woods near Henly Sutton's some one fired three shots, I supposed at us. * * * We went back next morning, and examined, but could find no sign of bullets." Tillman Sutton, who, as well as the last witness, was introduced by the prisoners, gives this account of the matter, namely: "I am a son of Henly Sutton, deceased. Some six years ago we heard some one hallooing and cutting up, and father and I went out to where we could see something, near one-fourth of a mile from the house, and saw two boys with a light. * * * Father shot twice, but not in the direction of John Barnard and Noah Sutton. He fired the shots down the bottom." For the purpose of showing subsequently existing and continuing ill will on the part of Sutton, the defense introduced Noah Mills, a kinsman of all parties, who testified that while at Sutton's still-house, about three years before the trial, Sutton picked up a big pistol, and said, if Big John Barnard did not "quit fooling around there, he would empty it into him." The witness makes no explanation of this threat, and gives no reason for it. None is shown in any part of the record, nor does it appear that the threat was ever communicated. The firing of the shots in the nighttime is sufficiently explained by the quotations given, which make it apparent that the deceased intended only to frighten the hunters away, and not to harm them. At any rate, it is evident that neither of the scenes thus far mentioned played any part in the tragedy ending in the death of Sutton, years thereafter.

The facts leading up to and causing the homicide were of more recent origin. It is a well-established, and indeed a conceded, fact, known to many of their friends and neighbors, that Henly Sutton and some of the defendants were on unfriendly terms for weeks, and perhaps months, before he was killed. Some time before his death,--exactly how long is not disclosed,--Sutton became greatly enraged on account of cruel injuries secretly done to his hogs. At different times, and to different persons, he charged Big John and Little John Barnard with the offense, and expressed a firm purpose to hold them to a personal account. To show their exact character, we give his accusations and threats somewhat in detail, and substantially in the language of the witnesses. George Barnard, an uncle of the defendants, says: "I had a talk with Sutton about the hog matter. He accused Big John and Vina's John [Little John] of cutting his hogs. They denied it. I talked to Sutton to try to get the matter settled. Sutton said he did not fear living man, and, if they got at it, the river would not be between them." Anderson Barnard, a son of George Barnard, says: "Sutton told me that Big John and Vina's John had cut his hogs, and that a man could not do him that way and live." Jesse Jordon states: "* * * A few days before the 4th of July," Sutton told him, "it would not do for him and Big John to meet." William Cook testified that Sutton told him Big John Barnard cut his hogs, "and he would kill him for it." These threats, or most of them, are shown to have been communicated. Little John and Elisha say that, a short time before the death of Sutton, they were passing his house with a loaded wagon; that he saw them, and, taking Elisha to be Big John, came out to the road "with gun and pistol, and said: 'Hold on there, Big John Barnard. I have a settlement to make with you;"' that, on discovering his mistake, he cursed Little John and Big John, saying that they cut his hogs, and that "all he wanted was to see Big John, the black-hearted rascal; that he would settle with him." All this was reported to Big John soon after it occurred.

Wiley Cozart claims to have heard Sutton say that Big John Barnard had cut his hogs, and that he would kill him for it "at all hazards, and would give any man $50 that would get him on the road between the still-house and George Barnard's; that he had the tools to do it with,"--at the time exhibiting a Winchester rifle. Speaking of a different time, Zora Horney says: "* * * He [Sutton] told me, if I would bring Big John Barnard between the still-house and George Barnard's, where he could kill him, he would give me twenty-five dollars." The two last alleged statements are not shown to have reached the ears of the defendants before the trial in the court below. The witnesses making them were impeached upon their general character by one witness each, and sustained by none. On cross-examination the witness impeaching Horney shows that he does so on insufficient grounds. Notwithstanding these threats, some of them very violent in their nature, it is not in fact shown, or attempted to be shown, that Sutton ever left his business, or went out of his way, at any time, to seek a meeting with the defendants, or any one of them; and it is at least probable that he had changed his mind as to the identity of the perpetrators of the offense complained of, as will appear from facts now to be narrated. The state's witness John F. Mills, who was a friend to Sutton and a cousin of the prisoners, makes the following statement: "A few weeks before the killing, I was talking with Sutton about the hog-cutting, and told him I didn't believe Big John had cut his hogs. He said he had about come to believe that too, and that, if Big John would make affidavit that he didn't do it, he would have nothing against him. I told him I would go and see him [Big John] about it. The next day I went to see Big John Barnard to get the difficulty fixed up. Barnard offered to go and make the affidavit that he did not cut the hogs, and fixed the Saturday following to do so." In his testimony, Big John says: "Sutton accused me of cutting his hogs. I did not do it, and offered to go before a magistrate and file an affidavit that I did not do it." Touching the same subject, Prior Barnard, Big John's father, says: "I knew of John Mills' coming to have John go and make the affidavit about not cutting the hogs. I told John not to go to make the affidavit; that it was a plan to get him killed." The affidavit was not made.

In stating the facts and circumstances leading up to the homicide, and as indicative of his state of mind, it is proper to note that Big John Barnard, particularly, became very angry at the charge made against him, and at one time went into Sutton's neighborhood to investigate the report, and perhaps to do more than that. The state's witness Clinton Leyer says that he met the prisoners at his mother's house, one mile from the home of Sutton, in the forenoon of the last Monday before Christmas, 1888; that four of them were then armed with Winchester rifles; that Big John called him to the fence, inquired and complained about the report,--seemed to be very "mad," and wanted "to get the matter straightened out." Thomas Sutton, another witness for the state, says that he saw four of the defendants, about 10 o'clock in the morning of the same day, some two miles from Sutton's still-house, and on his...