Murder or Not?

In January 2012, I published this non-fiction book about a murder trial that took place in Bullitt County more than a century earlier. We have decided to serialize the book here on the museum web site. Links to each part of it will be added to its table of contents here. You may also use this link to go back to the previous episode.

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Barbour Trial Begins - March 28, 1905

Thunderstorms were forecast as the case against John Barbour was called on Tuesday, and most of the rest of the week was taken up in jury selection. By 3:15 on Thursday afternoon, 272 persons had been examined, exhausting both the Jury Commissioners' list and a special group drawn from bystanders. Circuit Judge Samuel E. Jones drew an additional fifty names from the wheel which had been filled by the commissioners earlier that day.

The newspaper report made no mention of what opinions had been expressed by those who were excused from jury duty, so it is uncertain how public opinion was leaning. What is clear is that the case was a topic of lively discussion throughout the county.

Earlier, at 11 o'clock, twelve men had qualified for service to the satisfaction of the judge, meaning that they claimed to have had no opinion for or against the defendant. However, the Commonwealth peremptorily challenged two of them. Two more were substituted and the Commonwealth declared itself satisfied with the twelve. The attorneys for the defense then challenged six of the jurors and court adjourned for lunch.

The Courier-Journal reported, "At the afternoon session great difficulty was encountered in securing jurors who had not formed and expressed opinions and of those who qualified six were challenged by the defense and one by the Commonwealth. The defense has three peremptory challenges left and the Commonwealth two." With that, court was adjourned for the evening.

On Friday morning the two remaining jurors were selected after an additional twenty persons were examined.

Of the twelve jurors, all but one were farmers; the one exception being John Muss of Cupio who was a blacksmith. The others included Mose Elmore, and Elijah Boyd of Belmont, Lem C. King of Mt. Washington, Charles Duvall, Marsh Meeker and W. B. Burchell of Lebanon Junction, Matthew Mudd of Solitude, John M. Barrell of Barrellton, and Thomas P. Pauley, Lawrence Ogle, and W. Sylvanus Pauley, all of Cupio. The Pauleys were father and son.

As the trial got underway, Attorney Nat Halstead waived arraignment for Barbour and a plea of "not guilty" was entered. Then County Attorney Fletcher Combs read the indictment and, after some confusion about who would make opening statements, Combs dwelt briefly on the previous troubles of Barbour and Hagan which were the direct cause of the killing.

According to the newspaper report, "He referred briefly to the shooting at the Huber farm in February, 1903, and told of Hagan's willingness to leave all that he held dear behind him and go to the extreme end of the country in order to avoid further trouble with his enemy. He told of Hagan's return to Kentucky from Alabama, which was absolutely necessary in order to dispose of a few remaining properties, and feelingly referred to the tragic scene at Huber's Station, when he said Hagan, unconscious of the fact that his old enemy knew of his presence, felt a stinging sensation in his back and turned to find Barbour cursing him and pouring him full of bullets from a death-dealing automatic pistol."

Combs closed at 11:15 o'clock and Nat Halstead stated the case for the defense. He characterized Hagan's attitude toward Barbour as that of a bitter enemy who would stop at nothing in order to carry out his threat to end the life of the man he hated. He detailed the former trouble at such great length that Judge Jones admonished him to avoid any argument of the case. He referred to the Bob Hazel incident and said that Hazel had been living at Shepherdsville in excellent circumstances after his testimony for the Commonwealth although it was generally known that he could not support himself.

Mr. Halstead concluded at 12:15 and court adjourned for lunch. Following lunch, Robert J. Hagan dramatically entered the courtroom dressed in the blood-stained clothes worn by his brother at the time of the shooting. Coroner Harris Kelly, of Jefferson County was called to the stand and asked to point out the entrance of each bullet fired into Hagan's body. The defense objected that the clothes had not been identified as those worn by Francis J. Hagan at the time of the shooting, and Kelly was replaced on the stand by Samuel Casseday who positively identified them as such.

According to the newspaper report, the prosecution indicated that it would recall Kelly the next day to "show to the jury the point of entrance of each bullet, the contention of the Commonwealth being that Hagan was shot from behind, the bullet entering just above his left hip."

E. C. Bohne was called next by the Commonwealth and detailed the circumstances of the killing. He said he had ridden from Louisville in the coach with Hagan, and that Hagan was unarmed. He said he left the train ahead of Hagan, and, hearing a shot, turned to see Hagan running and Barbour following, firing as he ran. According to Bohne, Hagan was attempting to get around the end of the train to shield himself from the bullets, but fell as he reached the rear coach. He said he heard Barbour say: 'You dirty coward, you are crying now like a baby.' He saw Samuel Casseday throwing rocks at Barbour and saw the latter threaten to shoot Casseday.

Judge Carroll, on cross-examination, attempted to show that enmity existed between Barbour and Bohne, but Bohne said he and Barbour had always been on the best of terms. He said his son, Ferd Bohne, and Barbour were enemies.

Samuel Casseday and Robert J. Hagan each took the stand and essentially repeated the testimony they had given at the earlier bail hearing.

The newspaper stated, "Hagan during his testimony sought to make an explanation of the facts in connection with Bob Hazel, on whose affidavit, that he had been offered a bribe by Capt. Frank Hagan and his son Robert, the defense secured a continuance at the last term, but the objection of the defense was sustained. R. J. Hagan caused Hazel's arrest by offering a reward of $50, after the filing of the affidavit, and he was sent to Bullitt County, but the attorneys for the defense say they will not introduce him. He is in jail on a charge of perjury."

The paper also said, in passing, that "Barbour and his wife and their five children occupies seats beside his attorneys. Mrs. Hagan sat beside the attorneys for the Commonwealth." One can only imagine the looks that may have passed between Mrs. Barbour and Mrs. Hagan.

When the trial resumed the next day, April Fool's Day, the defense was faced with multiple witnesses, some new, who testified for the prosecution.

E. H. Wiggington, a furniture dealer of Bardstown, was the first witness. About his testimony, the paper wrote "He was in the rear of the ladies' coach and heard three shots fired in quick succession. He looked from the window as Hagan ran by and saw Barbour firing at him. Wiggington ran to the rear platform and saw Hagan run around the train. Hagan threw his hands to his hips and sank to the ground. Cross-examined for the defense, the witness said his brother had married a distant relative of the Hagans."

Frank Hagan, Sr. was the next witness. He testified in a broken voice of the events at the infirmary at the time of his son's death. So obvious was his grief, that he was excused without being cross-examined.

The paper continued to describe the testimony of each witness: "Hamilton Merrimee, a filter dealer, of Louisville, a new witness, testified that he saw Hagan get off the train carrying a dress suit case. He had walked but a few steps when the first shot was fired. The witness was confident there were no words before the shooting. He said Hagan ran beside the train toward the rear, with the evident intention of hiding behind the coaches. The witness ran to the rear platform and saw Hagan standing in the tracks, holding his left foot from the ground as though it pained him to put it down. Hagan cried 'I am shot! I am shot!' and fell. Merrimee said the train did not pull out until after the last shot was fired and that Barbour pursued his victim the length of a car."

Coroner Kelly, of Louisville, was recalled; and Robert Hagan donned his brother's blood-stained clothes to be used as an exhibit so Kelly could demonstrate the point of entrance of each bullet. The defense objected to this testimony, in particular at the use of the bloody clothes, but their objections were overruled.

Henry Southerland, a distiller, of Bardstown, another new witness, gave testimony essentially the same as others who had seen the shooting. The court was adjourned for lunch following his testimony.

According to the newspaper, "When the court reconvened D. J. Brumley was introduced. He said at the time of the killing he was roadmaster for the Louisville and Nashville and had gone to Shepherdsville to complete a property deal with Mrs. R. T. Lewis, Barbour's sister. As he alighted he shook hands with Barbour and passed on. Immediately after, he heard a shot and turning saw Hagan running backwards. Barbour was pursuing him, shooting as he ran. As Hagan reached the rear of the train he turned and received the last shot in the back. He fell to the ground. The witness said Hagan had made no demonstration toward Barbour and that Barbour pursued his victim the length of a car."

This testimony was particularly critical to the defense, as it contradicted the testimony of several other witnesses regarding both how Hagan was moving ("running backwards") and when and why a shot entered him from the rear.

Brumley also testified that the rear door was closed and locked; seemingly contradicting earlier testimony of those who claimed to have seen the end of the shooting affair from the rear platform.

Testimony of Mrs. Samuel Casseday was taken, as well as that of her son, Samuel, and of Captain Robert Tyler, C. L. Croan, and Ferd Bohne; each collaborating earlier prosecution witnesses.

A bit of damaging testimony was given by Alphonzo Shader, the train's baggage master, who testified that Barbour rode out in the baggage car, but got up about a mile from Huber's and left the car; thus contradicting Barbour's own testimony that he had remained in the baggage car the entire trip.

All in all, this was not a good day for the defense. They needed to regroup for Monday's session, which began with a final prosecution witness, Brack Siscoe, whose testimony agreed on all points with that given by several other witnesses who were on the train on the day of the shooting.

The Courier-Journal reported that, "At the conclusion of Siscoe's testimony Barbour was called to the stand in his own defense. He stated that he had lived in Bullitt county about fifteen years. He had previously lived in Louisville, where he met Hagan twenty years ago. They were fast friends. He said they had some trouble about three years ago, since which time there had been an enmity existing between them. Asked if he had ever been told of threats made against his life by Hagan, witness was about to answer when Mr. Kohn objected, and the jury was sent from the room while the point was being argued. The arguments were concluded at 12 o'clock and the court was adjourned for lunch.

"When court reconvened Judge Jones announced his decision sustaining the Commonwealth's objection. Barbour was then excused from the stand and Samuel B. Casseday, Jr., was recalled. He was asked if he had not said to a friend in a barber shop that Barbour would have been killed if he had not killed Hagan, and he replied 'No.'

"Barbour was then recalled and stated that he had trouble with Hagan in February, 1903. He started to detail the trouble when Kohn again entered an objection, and the jury was again sent out while it was being argued. Judge Carroll, Senator Carroll and Attorney Halstead consumed about two hours reading exhaustive opinions. Mr. Kohn submitted the question without argument, and after referring to various legal authorities Judge Jones sustained his objection."

Thus the defense was repeatedly thwarted in their attempt to get the earlier shooting incident before the jury.

The newspaper story continued with Barbour's testimony who stated: "I quit associating with Hagan in March 1900. We did not speak and I feared him. He was very bitter toward me. I am assistant treasurer of the Louisville Water Company and left my office August 11, 1904, at 3:45 o'clock to take the train for my home at Huber's Station. I armed myself because I feared a man who had formerly attacked me and who had been lying around Huber's. I did not know Hagan was in the State and never dreamed of his being on the train. I got off before the train stopped and walked forward. I met D. J. Brumley, with whom I had an engagement. We stopped to talk, when I noticed Hagan approaching me from behind Brumley. He was walking rapidly and his face was red and his eyes 'squintched.' When he saw me he shifted a suit case from his right to his left hand and thrust his right hand into his coat pocket. He came at me and pushed the suit case into my face. I threw up my hand to stop him and knocked off his hat. As I did so I drew my pistol and fired three times.

"He kept backing away with his hand in his pocket. He stumbled over a pile of stones and his hand flew up. I supposed he was attempting to shoot me through his coat and I fired twice more. He fell and I told him to throw up his hands. I said: 'You coward, you midnight assassin, you are back here at your old tricks.' Just then I felt something strike me, and turning saw Mr. Casseday throwing rocks at me. I told him to stop or I would shoot. Hagan in the meantime got up and walked to the platform, where he sat down. As he did so Casseday said: 'You have shot an unarmed man.' I replied: 'He is armed, and he won't deny it.' I saw Mr. Casseday feeling in Hagan's pockets, and I said: 'I know what you are doing, Mr. Casseday.' and he replied, 'It is none of your business.' I then went over to a store and telephoned to Jailer Jones that I wanted to surrender.

"At this point another objection was entered by Mr. Kohn to the witness being asked whether Samuel B. Casseday, Jr., meeting him just after the shooting had told him he would have been killed if he had not killed Hagan. He was again sustained and the question went unanswered."

Thus ended the day's session, with Barbour still on the stand. He was called to the stand when court convened the next morning to complete his story of the killing. Then at 9:30 he was turned over to Mr. Kohn for cross examination.

The newspaper described his testimony as follows: "The defendant stood the trying ordeal well and was deliberate in his every answer. In some respects his testimony differed from former statements, but the vigorous cross examinations did not materially affect his defense." This represented a decidedly different tone toward the defendant than had been exhibited by the newspaper's earlier stories.

After considerable argument by attorneys, the judge ruled that Barbour could testify about the threat made against Barbour by Hagan that was said to have been communicated to him by a man named Barrel who was now deceased. The judge ruled however that other alleged threats had to be introduced by those who witnessed them before the defendant could testify as to having been told of them.

The newspaper reported that, in response to Kohn's questions, "Barbour admitted firing the first three shots at Hagan in quick succession, following them with two more rapid shots after a short pause. He admitted having called Hagan abusive names and when pressed, he stated that he had said, 'you are back here at your old tricks and now that you are stuck, you are yelling like a stuck pig,' when his victim was lying on the ground calling for a doctor."

Barbour denied showing the murder weapon earlier to Joseph Sanders. The paper said, "He also denied various newspaper reports quoted the morning following the tragedy. He said when asked if Hagan ran from him, 'no, but he walked very fast.'"

After Barbour left the stand, T. M. Kelly was called. He testified that Hagan had told him he had tried to kill Barbour once and failed, but would make sure the next time. Under cross-examination he admitted that he didn't take the threat seriously enough to relay it to Barbour.

Joe Horn again testified that he heard Hagan say Barbour was one of three men he intended to kill.

Joe Dorsey, another black man, testified that while riding with Hagan one day after the earlier trouble they saw Barbour approaching and Hagan took his revolver from his hip pocket and placed it in his coat pocket, easy of access. He admitted on cross examination that no threat was made and no words passed between the men.

Dr. Grant was called to the stand by the defense, but, according to the newspaper, his testimony proved to be a disappointment for them. He testified that his examination of the wound collaborated his previous impression that the bullet had entered Hagan's body from behind. At the hearing on the motion for bail, when he was asked about the result of the examination, he attempted to explain in detail, but was stopped by an objection, and the matter was lost sight of in the resulting argument. While he would have testified as he did today had he been allowed to explain himself, the fact that he said he had been stopped at a critical moment left the impression in the minds of the court and his hearers that he believed the bullet to have entered the abdomen.

Thus all medical authorities involved were in agreement that the fatal bullet entered Hagan's body from the rear.

Barbour's sister, Lillian Lewis was called to the stand, and she testified much as she had earlier. She said she was standing at a lilac bush in her front yard and saw all the men alight from the train. She saw Hagan approach her brother and shove his suitcase toward him. The shooting followed, and she testified that she saw all the first three shots. On cross-examination she said Hagan dropped his suitcase at the first shot and backed away from Barbour with his left hand in the air and his right hand reaching toward his coat pocket. She realized trouble was inevitable when Hagan advanced toward Barbour, and exclaiming "look out brother," turned to run into the house. She said the shooting following so quickly she could not avoid seeing it.

One inconsistency in her testimony was her location at the time of the shooting, as Mrs. White had testified that they were both on the porch at that time.

A character witness, Caldwell Norton, first vice-president of the Commercial Bank and Trust Company of Louisville, testified that Barbour's character for peace and quiet and good behavior was of the best.

Susie Smithers, postmistress at Huber's station, testified that she saw Hagan alight from the train. She turned to "tidy up her post office to receive patrons for the incoming mail" and heard the shots. She turned and saw Hagan backing away from Barbour. The latter was following him and shooting as he did so.

William Hall, the bricklayer who was building a chimney on Barbour's house, said he saw Hagan backing away from Barbour and the latter was following and shooting at him. He said Hagan did not drop his grip until after the third shot.

According to the paper, Philip Smithers corroborated Hall's statement.

George James testified next. His testimony corroborated the other witnesses for the defense. On cross-examination he admitted that Barbour pursued Hagan the length of the car, and said the train did not start until the men had reached the end of the rear car after the last shot was fired.

The last witness of the day was Hugh Downey who testified that Hagan had given him a gun with the request that he kill Barbour, promising him money and property as a reward. He admitted on cross-examination that he kept the gun and did not refuse to do Hagan's bidding, although he said he had never thought of carrying out the request.

Asked by the prosecution if he had been run out of Larue County by indignant citizens, he was about to answer when objection to the question by counsel for the defense was sustained. Attorneys for the Commonwealth announced that they would introduce witnesses the next day to impeach Downey's testimony.

The next day a number of character witnesses were introduced by the defense including many prominent Louisville citizens whose presence was meant to impress the jury.

The first was John Breckinridge Castleman who served under John Hunt Morgan in the Civil War, and who later graduated from law school, but joined his father-in-law in the insurance business. In the 1880's he was adjutant general of Kentucky, a role he again assumed following the assassination of Governor Goebel in 1900.

Next was Judge Samuel B. Kirby of the Jefferson County Chancery Court, and a former county attorney for that county.

He was followed by Charles R. Long, president of the Louisville Water Company; Charles Hermany, the company secretary; Lewis McCleary, his assistant secretary; and Joseph Laveille, a company clerk.

Other character witnesses included James S. Barrett of the Germany Security Bank; William O. Bonnie, a wholesale whiskey distributor; and John W. Biles, the owner of a Louisville company that manufactured drying machinery, among others.

Prior to the calling of these character witnesses, Barbour's sister, Lillian Lewis was recalled to the stand. She testified that she had often seen Kinchloe Jones loitering about the depot at Huber's Station just prior to the killing, and had warned her brother of this. This testimony was in support of Barbour's stated reason for carrying his pistol to protect himself from Jones whom he had earlier accused of trying to assassinate him.

Barbour's nephew, J. J. Blankenship corroborated Barbour's statement of the threat alleged to have been made by Hagan to C. M. Barrel, now dead, and communicated to Barbour.

When the defense called Miss Ada Jones, sister of the Jailer, to testify about Hagan telling her in 1902 that he always went armed, the prosecution objected on the grounds that the length of time that had elapsed made it irrelevant to this case. The judge sustained the objection and Miss Jones was not permitted to testify.

William Bridges, of Louisville, was called to the stand, and said he had been asked to deliver a 44 caliber revolver to Hagan by a relative of the latter. When he met Hagan and gave him the revolver he said Hagan asked him not to tell Barbour, saying, "If any of them fool with me now they will get hurt."

According to the newspaper, Bridges, W. F. Smithers, Joe Crigler, Lawrence Holtzclaw, Squire A. E. Funk, Frank Bell and Dr. J. W. Fultz testified that Barbour's reputation for peace, quietude and good behavior was good. J. B. Summers said it was good previous to the shooting. Milton Church testified that he saw Barbour leave the smoking car of a train on one occasion to avoid a meeting with Hagan, who occupied a seat in the car. He also gave Barbour a good reputation.

Newton Martin, a barber, testified that Samuel B. Casseday, Jr., made the following statement to him during a conversation concerning the killing: "I am sorry it happened, but it is just as well it did, for if Barbour had not killed Hagan, Hagan would have killed him." Casseday had denied making the statement in his examination the previous day.

The last witness for the defense was Jailer Jones, who testified that in a discussion of the shooting in February, 1903, the following morning he had said to Hagan, "Somebody came near putting out Barbour's light last night and if they had aimed a little higher they would have killed him." In reply, according to the witness, Hagan said, "I wish I had held my gun a little higher and cut him in two." Jones was subjected to a rigorous cross-examination by Kohn and admitted he was friendly to Barbour.

Attorneys for the Commonwealth called a series of witnesses from Larue County to impeach the testimony of Hugh Downey, given the previous day. They included L. M. Gore, Circuit Clerk; John P. Collins, Sheriff; Robert Enlow, State Representative; and Charles Williams, County Attorney; all of whom testified that Downey could not be trusted to tell the truth under oath. Their testimony was supported in like manner by Ed Croan, S. A. Hornbeck, and Clarence Croan of Shepherdsville.

Thus the jury was left to ponder whether this was another case of false testimony, or if, this time, Downey was telling the truth.

Brainard Platt, now city editor of The Courier-Journal, was called to the stand, and identified the manuscript containing Barbour's statement which he made the night of the tragedy, but which he later denied. Platt said he had read the statement to Barbour and the latter said it was as he stated it. Platt also said Barbour reached his hand to his hip pocket in explaining how Hagan had attempted to reach for his gun. Barbour now contended that Hagan put his hand in his coat pocket.

Joseph Sanders, a lawyer, again testified that Barbour had shown him a magazine of the gun with which the killing was done and explained to him the deadly effects of a bullet fired from the pistol. "He told me," said the witness, "that he had fired a bullet into a beef-steak and on another occasion killed a dog as experiments and found that the bullet spread and tore the flesh and if a man was hit with a bullet from the revolver it would not be of any use to send for a doctor." Barbour previously denied this.

E. C. Bohne was recalled by the Commonwealth and denied that Samuel A. Casseday had fumbled in Hagan's pockets as he was stooping over the prostrate man. Barbour had testified the previous day that he saw Mr. Casseday fumbling in the wounded man's pockets, apparently taking a pistol from him, whereupon the slayer called to him that he was watching.

Mr. Casseday was recalled and asked if he had fumbled in Hagan's pockets or if he had been accused of so doing as stated by Barbour and said: "I did not touch his pockets and no conversation passed between myself and Barbour after I reached Mr. Hagan." This concluded the day's testimony.

On Thursday, Kinchloe Jones was the first witness called. He denied being with Hagan on the night of the shooting in February, 1903, as Barbour alleged in his statement on Wednesday. He denied that he had ever threatened Barbour or that he had been loitering around Huber's Station. He said he was in the house and heard Hagan yell just after he heard shots on the night of the first shooting.

Mary Hagan was called to the stand. She testified that she assisted her husband in preparing for his trip to Louisville and he did not have a revolver. She said her husband had never carried a revolver until he was shot at by Barbour in February, 1903. According to the newspaper, "she wept freely while on the witness stand and it was some time before she could compose herself enough to answer questions. She was not cross-examined."

The Commonwealth closed with her testimony and the defense recalled Miss Ada Jones who was not allowed to testify Wednesday regarding Hagan's propensity to carry weapons. Mr. Kohn's objection was again sustained because of the remoteness of the alleged statement, and she was again excused. According to the newspaper, "the defense contended that it was Hagan's general habit to go armed and urged that as Mrs. Hagan had testified to his habit, Miss Jones' testimony would be competent. The court then instructed the jury to not consider Mrs. Hagan statement as to her husband's habit regarding weapons."

The defense called Bertram Webb, a clerk, to the stand. He stated that he was at The Courier-Journal office with Barbour the night of the killing and heard Barbour's statement. He denied that the statement published in the paper was given by Barbour and said Barbour reached for his coat pocket in explaining Hagan's action rather than to his hip pocket. On cross-examination he became rather confused and failed to remember scenes, incidents and conversations that were said to have taken place in the office during the interview.

The defense rested with Webb's statement and both sides announced their case closed. Kohn then moved to strike out the evidence of William Bridges, Hugh Downey, and De Moville Jones and a part of the testimony of Lillian Lewis, and John Quick. The motion was overruled in each instance except that of Mrs. Lewis. Her testimony regarding Hagan's habit of carrying a revolver, years ago, was excluded from consideration.

The courtroom was packed to overflowing as Judge William Carroll addressed the jury in his closing argument. The newspaper stated that Carroll "held the crowded courtroom spellbound, when he made the opening argument." He began speaking at 3:30 and spoke until court adjourned at 5:10.

By way of introduction, he took his hearers back to the time when, a mere boy, he left college and stepped into the world to make his way. He told how he had been taken in by the defendant's father, and had been buoyed along until the tide began to turn and he could begin to see his way. The newspaper quoted him:

"I am more deeply interested in this case than simply as an attorney, gentlemen of the jury. The kindliness of that man's father and mother, who herself placed the shroud about the lifeless form of my own dear mother when she entered her last sleep, draws me near to John Barbour, as though to my own flesh and blood. We are to be governed by the law of this case, gentlemen, and not what our sympathies or feelings tell us. I have not and will not plead for mercy. I asked no quarter. I simply want for John Barbour a verdict of acquittal that is his due, that he may return to that steadfast wife and family of prattling children, and once more take them to his arms around his own fireside."

Judge Carroll argued at length on each of the instructions of the court, placing particular stress on the self-defense clause. He contended that his client had every reason to believe he was in imminent danger from the man who was his bitter and relentless foe. He closed with another appeal to the sympathies of the jurors, again referencing to his feelings for Barbour, which he said, "has grown with the years."

The paper reported, "It is the general opinion throughout Bullitt County that a hung jury will be the result. Attorneys for the Commonwealth say they have built up one of the strongest cases ever heard in a court room."

On Friday, Nat Halstead made the first speech of the day, arguing for the defense. He paid a high tribute to Aaron Kohn's ability as a criminal lawyer. By praising Kohn, he was trying to plant a wariness in the minds of the jury. He then laid especial stress on the alleged threats of Hagan and his alleged habit of constantly going armed.

The newspaper reported, "Mr. Kohn in opening his argument for the Commonwealth contrasted the scenes at the homes of the slayer and his victim. He claimed that the presence at the trial of Mrs. Barbour and her children was to arouse the sympathies of the jury."

Kohn asked the jury, "Did John Barbour think of the loving wife and children when he fired that shot into Frank Hagan's back? Turn to the other picture, Did the thought of a devoted wife and family deter John Barbour when he followed his victim like a dog, calling him 'coward,' 'midnight assassin,' and as poor Frank Hagan lay gasping for breath and begging for a doctor, from running up to him and saying: 'You cur, you are crying now like a stuck pig.'"

Kohn then argued extensively on the points of the court's instructions, to convince the jury of Barbour's guilt.

The last speech of the day was delivered by Charles Carroll who used most of his time to attack the prosecution, referring to Hagan's family as "the private persecutors." According to the paper, "he made a bitter personal attack on Aaron Kohn, whom he termed the hired prosecutor of John Barbour."

The courtroom was crowded to the limit again Saturday morning when Judge Jones wrapped for order. Commonwealth's Attorney David J. Wood began addressing the jury immediately. According to the newspaper, he said in part:

"Men of Bullitt County: it is now my duty to address you. I have lived and worked among you many years, and to know you is to love you. I come before you not as a hired attorney, gentlemen, but as the representative of the grand old State of Kentucky, whose laws I have sworn to uphold. I come not with malice and hatred in my heart, as has been charged by counsel for the defense against Mr. Kohn. It is as much my duty to protect the innocent as to punish the guilty, and I would rather be a snake in the road then to stand before you and ask you to inflict punishment on a man who is innocent.

"We have presented to you one of the strongest cases of deliberate murder that has ever been presented in a Bullitt County court. We have proved by the defendant's own sister that she saw Hagan moving backward holding his left hand in the air while her brother was pouring a murderous fire into him. We have shown you the coat John Barbour purchased and had altered so that one pocket might hold the weapon with which poor Frank Hagan was sent to an untimely end. Look at that pocket, gentleman; it is not like the others. Besides being twice as deep it is made of heavy canvas that would withstand the wear and tear of a pistol. Men, this is not a case of manslaughter, but of foul murder. These little children are brought in this court to appeal to your hearts, but you must not so far forget your duty to the State of Kentucky as to let it influence your decision. Don't stain the fair name of Bullitt County and the State of Kentucky with a verdict short of murder in this case. Let it be heralded throughout the broad land that law will be enforced in Bullitt County and that our homes will be protected."

Wood denounced Charles Carroll, whom he characterized as the real Judas Iscariot, "who," he said, "took Frank Hagan's money and stood before a jury and denounced John Barbour as his assassin on the occasion of his former trouble; the man who, when the breath left his client, accepted a fee from the man he had formerly denounced, and now stands before you in behalf of John Barbour, and reviles Frank Hagan, even while the blood money of Hagan is jingling in his pocket."

By this we learn that Charles Carroll was Hagan's lawyer in his trial in the alleged assault of Barbour in 1903.

Wood paid a glowing tribute to Aaron Kohn, who, he said, had by his conduct of the case for the Commonwealth proved himself to be as fair and just as any man who ever stood before a jury in Bullitt County, and who, he said, had taken charge of the case at his (Wood's) personal request. He bitterly arraigned the attorneys for the defense, who, he said, had argued the case not on the law and facts, but with a bitter personal attack on the characters of Aaron Kohn and the Hagan family. He denounced Charles Carroll's attack on Robert Hagan as an insult to decency.

In closing, he said: "Men, for God's sake don't stain the fair name of this County by letting this bloody handed assassin go unwhipped of justice. Give us a verdict of guilty against this defendant, that we may in a measure wipe out the stigma that has been cast on this County as a result of this heinous and diabolical murder."

The jury retired to deliberate at 11:30 o'clock, and at 12 o'clock were sent to lunch. At 1:30 o'clock they reported that they could not agree upon a verdict.

They were sent back to the jury room and at 3:30 o'clock again sent out word that they could never agree. It was evident they were hopelessly hung and Judge Jones discharged them.

A poll of the jurors indicated that eight voted for acquittal including T. H. Pauley, W. S. Pauley, L. C. King, M. H. Meeker, Matthew Mudd, E. I. Boyd, Mose Elmore and John M. Barrel. Charles Duvall, W. D. Burchell, Lawrence Ogle and John Muss voted guilty.

The attorneys for the defense, after the jury was dismissed, announced that they would make a motion for bail for their client at Shepherdsville on Monday.

On their motion, Judge Jones scheduled a hearing for the following Wednesday evening. At that time, James P. Edwards, representing the Commonwealth, and Nat Halstead and Frank Straus, representing the defense, argued for their respective sides. The argument did not last long. Judge Jones said he believed the case was a bailable one, and he fixed the amount of the bond at $5,000.

Frank P. Straus, William Troutwine, W. P. Lee, B. H. Crist and J. B. Dawson, friends of John Barbour, signed the bond. After the formalities had been completed, Barbour was released. He spent the night at Shepherdsville with his wife and children, and then resumed his business duties in Louisville the next day.

Barbour's battle for freedom was not over. He still faced a second trial, but now he could return to some semblance of a normal life. In the months to follow he appeared to live the life of a model citizen. His family continued to live on their land at Huber's Station while he traveled daily to his job in Louisville.

Mary Hagan returned to her farm near Montgomery, Alabama, while Samuel Casseday remained at Huber's Station, a constant reminder to Barbour of what was yet to be settled.

However, a speedy second trial was not to be had. Since this was a circuit court, it met in Bullitt County every few months, and at the next session of the court at the end of August, the case was continued to December. Then it was continued again to the following March term on the motion of the defense after Barbour signed an affidavit listing nine witnesses who were not present as subpoenaed. These included P. H. Smithers, Mrs. Rogers White, W. C. Hall, George James, Mrs. Sue McCormick (Sue Smithers, now married), William Bridges, Myrtle Thompson, John Quick and Paul Crosby.

In addition, three of his attorneys, including his lead attorney, were unavailable due to conflicts with their duties in other jurisdictions.

In March 1906, Barbour again petitioned the court for a continuance due to the absence of Mrs. McCormick who was about to give birth to her first child. The petition was granted and the case was set for the August term.

In August it was the prosecution's turn to ask for a continuance, pleading that absence of key witnesses: Harris Kelly, the Jefferson County coroner; and the three doctors, Dr. Walter Brooks, Dr. H. H. Grant, and Dr. R. C. J. Percival. The judge placed the case on a special November docket.

However, in November, the witness William Bridges, and Barbour's lead attorney, Judge William Carroll, were not available, and once again the case was continued, this time to the December docket.

Finally, on December 11, 1906, twenty months after the previous trial, both sides pronounced themselves ready for trial.

While it is difficult from our distance of time to ascertain motives for these delays and continuances, it is likely that this was nothing more than the normal difficulty of getting witnesses to appear, especially at that time, with less convenient communications and travel than we enjoy today.

However, as Christmas approached, Judge Jones was determined to bring this case to trial.

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