Rains v. State

Decision Date28 January 1890
Citation7 So. 315,88 Ala. 91
PartiesRAINS v. STATE.
CourtAlabama Supreme Court

Appeal from circuit court, Morgan county; JOHN MOORE, Judge.

Robert J. Rains was convicted of the murder of his brother, Bone Rains, and sentenced to be hanged. Before trial, defendant applied for a change of venue on the ground that he could not get a fair and impartial trial in the county. In his application he stated that when he was arrested, and his arrest became known, a mob was formed to take him from the custody of the deputy-sheriff, and hang him, and the officer avoided the mob by traveling another route. J. M. Echols, the deputy-sheriff by whom defendant was arrested, being examined in his behalf, testified that he never heard of any mob, and that he traveled with his prisoner on the usual mail route that he had heard "right smart talk about the killing but no more than there is generally over any killing; never heard anybody say that defendant ought to be hung, or ought to have his neck broken, but the people generally believed that he killed his brother, and have heard people say that if he did kill his brother he ought to abide the consequences of the law." W. J. Owens, another witness for defendant testified: "I have heard some people say that they thought that he ought to have justice; that they believed that he was guilty, and ought to be tried for it according to law, and have justice done him. Don't know that I ever heard any one say that he ought to be hung, but have heard people say that they believed that he killed his brother. The general opinion of the people I have heard speak of it is that he is guilty, but I have not heard many talk about it,-not more than two dozen." The affidavits of M. H McCullom and W. C. Cornelius were also submitted, but whether for or against the application the record does not show. The court overruled the application, and defendant duly excepted.

It appeared on the trial that the dead body of deceased was found in or near the public road, about five miles from Hartselle, early in the morning, one day in January, 1889 and near by were found a pair of gloves, and a nubia or wrap, which were identified as belonging to defendant. It was shown, also, that, on the preceding day, defendant, deceased, J. L. Alexander, and several other persons, were in Somerville, in attendance on the county court, where a suit or criminal prosecution was pending against Alexander for slanderous words alleged to have been spoken by him about defendant's daughter; the affidavit on which the suit or prosecution was founded having been made by the deceased. The case was not tried, and the parties in attendance started for home in the afternoon; defendant and his brother, with J. D. Sims, being on horseback, and the others in Alexander's wagon. They all stopped at Hartselle about dusk, and ate some crackers and oysters, for which Alexander paid; and Alexander further testified that, "having made friends with Bone," the deceased, he lent him 25 cents with which to buy a pint of whisky. The parties separated at the fork of the roads, several miles beyond Hartselle; defendant, deceased, and Sims going to the right, while the others took the left road. Sims further testified, on the part of the prosecution: "Defendant saw Alexander hand Bone the quarter, and immediately remarked: 'Bone has sold out to Alexander.' We got on our horses, and started home," separating from the others as stated above. "Defendant was quarreling with Bone, telling him he had sold out to Alexander, and that any one who would drink with Alexander was as mean as he was. This was kept up for some distance, Bone not being angry in the mean time, and telling him: 'I know what you want. You want a drink of this whisky,'-and gave him a drink or two of it. Just before the difficulty, defendant said to Bone, 'Why did you make that affidavit, any way?' to which Bone replied: 'If I had known it was going to cause me and my wife as much trouble as it has, I never would have made it.' We were then riding abreast, and I was between them. Defendant replied to what Bone had said, cursing him and his wife, and saying: 'They are no better than me and my wife.' In a very short time, Bone stopped, and got off his horse, standing by his side, with his back to me, and his face towards the horse's tail, as if making water. I next saw defendant, who I did not till then know had dismounted, going around in front of the horses towards Bone with his coat off and said to him: 'None of that, Bob. Let's behave ourselves, and go home as we should do.' Bone then turned around to look behind; and, as he did so, the defendant struck him somewhere about the head or shoulders. Bone then knocked defendant down and was on him when I pulled him off as soon as I could. As I pulled him up, he staggered, and fell to his knees, and asked me to help him, saying that he believed that he was drunk. I assisted him to the side of the road, and set him down, while I went after the horses, leaving the defendant there. I was gone twenty or thirty minutes, and, on returning with the horses, met defendant one hundred yards or more from the place. I asked him where Bone was, and he answered: 'Where you left him.' I went back, and found Bone lying on the ground, spoke to him, and shook him. He was dead, and I told defendant so. He replied: 'You can't say I did it. You did not see me do it.' I proposed to go and get some one to care for the body, but he said I should not; that it would give us away; and that we must get away. He also said to me: 'You have got to do as I tell you; and, if you don't, or if you tell it, I will kill you."' On cross-examination, the witness admitted that he had said to several persons named that he knew nothing at all about it, and said this was before the defendant was put in jail, and that he said so because he was afraid defendant would kill him, as he had said he would. Defendant's counsel then asked him: "Is what you say about that as true as everything else you have testified in this case?" The court sustained an objection to this question, and the defendant excepted.

After two witnesses for the prosecution had testified as to the finding of the body, and before the examination of Sims or Alexander, J. H. Kitchen was introduced as a witness for the state, and thus testified: "I was in Somerville on the day preceding the night on which it is said Bone Rains was killed. I came as a witness before the county court in a case in which Alexander was charged with having slandered the defendant's daughter. Defendant, Bone Rains, Sims, Alexander, and Knapp, and myself were here that day. The case was not tried, and we all left, about 3 P. M., to go home." Defendant moved to exclude from the jury what the witness said "about the trial in the county court, because it was irrelevant," and excepted to the overruling of this motion. W. R. Crow, another witness for the state, testified that, "within twelve months before Bone Rains was killed, defendant told him that Bone had knocked him down and thought he had killed him; that he intended to do Bone just as Bone had thought he had done him, if it took him twenty years, or a life-time; and that he intended to do it when Bone was not expecting it." Arch Johnson, another witness for the state, testified that, "in the spring of 1888, defendant told him that bone had knocked him in the head with a single-tree, and then went to the woods with his gun, and stayed there three days; that the next time Bone offended him, or made him mad, he would kill him in the woods, or out of the woods, if it took him twenty years to do it." Defendant objected to the admission of this part of the testimony of each of the witnesses "on the ground that it was too remote, and was incompetent;" but the court overruled his objection, allowed the same to go to the jury, and defendant excepted.

Defendant testified in his own behalf, and said: "We had been to Somerville, and on our way home, after leaving Hartselle, me and my brother had some words about my daughter. Just beyond Vaughan's bridge, where the difficulty took place, I got down to make water; and, the first I knew, Bone knocked me down, jumped on me, and was cutting me with his knife, when I pulled out mine, and made one cut at him. I did not know I had cut him." He was then asked, on cross-examination, "What were the words you and your brother had about your daughter?" and answered that he did not remember. The solicitor then asked him "If his brother said anything, or slandered his daughter," and he answered that he did not. Defendant objected to both the last question and the answer "because it was illegal and irrelevant," but the court overruled his objection, and he duly excepted. The defendant was further asked, on cross-examination, "where he was each day and night from the Monday night until he was arrested," and the court allowed this question, and the answer thereto, against the objection and exception of defendant.

The court charged the jury "that, to warrant an acquittal on the ground of self-defense, ...

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