Murder or Not?
Second Trial Begins - December 13, 1906

Judge Jones, who had presided over the first trial, was well aware of how difficult it would be to obtain a jury from Bullitt County. After more than three years, hardly anyone in the county was unfamiliar with the troubles between Barbour and Hagan; and most had strong opinions.

For this reason, he had 130 men from Hardin County brought to Shepherdsville by train on Thursday morning to be examined as potential jurors. Many of those examined had read or heard of the case and had formed or expressed opinions. Some others excused themselves by avowing their disapproval of and conscientious scruples against capital punishment.

After examining more than eighty of these men, a jury was finally selected. They included, according to the newspaper, W. R. Pickerell, Sam Wagoner, Horace Bland, W. B. Tabb, A. N. Mann, H. O. Bland, Wayne Wright, L. Hammond, Lee Ash, J. W. Ross, W. T. Combs and H. F. McBride.

Nineteen attorneys lined up to try this case: nine for the Commonwealth, and ten for the defense. The prosecution included D. A. McCandless, the Commonwealth Attorney for the Tenth District which included Bullitt County; Aaron Kohn, the distinguished Louisville lawyer who had been prominent in the first trial; H. T. Wilson and Enoch E. McKay of Louisville; J. F. Combs and J. F. Zimmerman of Shepherdsville; Jere O'Meara, and H. L. James of Elizabethtown; and Judge James P. Tarvin, of Kenton County.

The defense team was again led by Judge William Carroll. Joining him were Charles Carroll and F. P. Straus of Louisville; Nat. W. Halstead of Bardstown; Ben Chapeze, E. C. Ward, R. F. Hays and H. H. Glenn, all of the Shepherdsville bar; and L. A. Faurest and James D. Irwin of Elizabethtown.

The Elizabethtown lawyers were likely added to both teams due to the fact that all of the jurors were from Hardin County. The prosecution perhaps added Judge Tarvin to counterbalance the prestige of Judge Carroll.

The next morning's paper reported, "On completion of the jury, Col. E. E. McKay made the opening statement for the Commonwealth. It was a strong and able statement. He outlined the facts which would be proven, and eloquently described the killing. He told of Hagan's coming back to Kentucky for the purpose of selling the remainder of his land and his intention to immediately return to his wife in Alabama, of his gratification at being able to leave the home of his enemy and the scenes of trouble. While he spoke, the suit case which Frank Hagan carried on that fatal August afternoon, and which contains the gory garments which he wore when murdered, was placed beside him. He detailed graphically the prisoner's hatred and malice and how he stood over his bloody victim and called him a cur and told him he was squealing like a stuck pig. He told of Barbour's visit to The Courier-Journal and his statement, and of his subsequent denials of that statement when he saw that it hurt his case."

Nat Halstead spoke first for the defense. When he began speaking of the shooting incident in 1903, the prosecution objected, and Judge Jones dismissed the jury to hear arguments. These took the remainder of the afternoon until court adjourned.

Friday morning's weather was nasty, and few spectators were in attendance as Mr. Halstead continued his opening statement. The paper reported that he "finished his opening statement at eleven o'clock, after having spoken nearly three hours. He reviewed the case from top to bottom and dwelt upon the former friendly relations of Barbour and Hagan. In seeking to give particulars of the difficulty which occurred between Barbour and Hagan in 1903, Mr. Halstead raised a storm of protests from the prosecution, and a warm argument ensued. The court held that particulars could not be given, but the attorney insisted on going into them, and more protests followed, and the attorney was 'admonished' by the court but kept on giving particulars. The argument was very acrimonious, but promised to be more so."

The rest of the day's testimony was only briefly summarized by the newspaper, and we know little about it.

Jefferson County Coroner Kelly was the first witness. He testified to holding an autopsy, described Hagan's wounds and said he was shot in the back.

Following his testimony a number of prosecution witnesses were called to the stand. They included Ferd Bohne and his father, and Clarence Croan, all who had testified before. The paper also mentioned four other witnesses by name, but gave no information about their testimony. They were Brack Sisco, Charles Gill, Mr. Escott, and Mr. Moore. It did indicate "the case is about the same as that made out on the former trial, with the exception of Escott's testimony, which was unfavorable to the defendant."

Saturday morning's rainy weather continued to diminish the trial's attendance. By now most of the county's population was well familiar with the facts of the case, and were just awaiting the time of closing arguments.

Braxton Bragg Siscoe, an undertaker of Bardstown, was the first witness called. His evidence, although less detailed than that of several others, supported the prosecution's case. He was in the rear of the ladies' coach and heard two shots near the smoker. He looked and saw Barbour running and firing a revolver at someone. The man at whom he was firing disappeared around the end of the train.

Following testimony by C. E. McCormick, an attorney of Shepherdsville, that Captain Robert Tyler, an earlier witness, was now dead, the court allowed the official stenographer, Arch Pulliam, to be sworn in to recite Captain Tyler's earlier testimony. The defense objected to his use of the earlier trial's transcript and, after the jury was sent from the courtroom and the question was argued by attorneys, Judge Jones overruled the objection of the defense and the witness was allowed to give the evidence of Captain Tyler from memory refreshed by the transcript. However, the defense continued to object to the questions asked in the transcript, and finally Mr. Kohn excused the witness from the stand.

Robert Hagan was called to testify as to the dying statements of his brother. Counsel for the defense again objected to the witness' testimony, and the jury was excused while the court heard Mr. Hagan's testimony to determine what part would be competent for introduction to the jury.

According to Hagan, his brother dictated his will, and said he was struck from behind; then shot in the back and shot through the wrist as he turned and threw his hand in the air in the attitude of pleading for mercy. The dying man said that Barbour followed him, cursing him when he fell and calling him "midnight assassin, cur and coward." and sneering at him for "crying like a stuck pig."

While the judge allowed the jury to hear this testimony, it is interesting to note that it varies somewhat from similar statements made by Robert Hagan at earlier times.

Defense counsel asked the witness if his brother did not agree to leave the state on condition that the indictment in connection with the former trouble be dismissed. Mr. Hagan answered, "No." He said the indictment was dismissed on condition that Hagan dismiss a similar indictment against Barbour for an alleged attempt at midnight assassination. At the conclusion of Mr. Hagan's statement court adjourned for lunch.

D. J. Brumley was the first witness called at the afternoon session. His testimony was essential the same as he had given at the earlier trial. He met Barbour, shook hands, walked two or three steps and heard the first shot. He turned and saw Barbour pursue Hagan about sixty feet. He heard Barbour call Hagan a "dirty cur." He said Hagan made no demonstration toward Barbour.

Samuel Casseday again corroborated other witnesses' testimony regarding the shooting. He rode out on the car with Hagan. He heard Barbour call Hagan "midnight assassin," "cur," and "coward." He threw a stone and struck Barbour and the latter turned the revolver on him and threatened him. He said when Hagan fell he lifted him up and Barbour said, "I see what you're doing. Mr. Casseday." Witness said he was simply holding the wounded man until help came to assist him in conveying the victim to his buggy.

As we recall, Barbour repeatedly stated that he believed that Casseday was removing a gun from Hagan's pocket.

Mary Hagan was the last witness for the prosecution. She again told of packing her husband's suit case for the trip north, and that he had no weapon when he left Montgomery.

At 2 o'clock court adjourned until 9:30 Monday morning, when the defense would begin its testimony.

On Monday morning, Barbour took the stand in his own defense and again gave his version of the tragedy. The following details are taken from The Courier-Journal of the next day.

Asked by Judge Carroll whether he had a speaking acquaintance with Hagan for months just prior to the killing, Barbour said, "not since the night he waylaid me."

Mr. Kohn objected to the reply and was sustained, the court instructing the jury to disregard it.

Again when asked if he had trouble with Hagan about February 14, 1903, Barbour said: "Yes, that was the night he ambushed me." The objection of the Commonwealth was again sustained and the jury instructed to disregard the answer. Judge Carroll attempted to get the details of the previous trouble before the jury over the objection of the Commonwealth and the jury was excused while the question was being argued.

Once again, the judge ruled that Barbour could not tell of the 1903 alleged shooting incident since Hagan was unable to be present to give his version of the story.

When asked to describe what happened on the day he shot Hagan, Barbour said:

"I got off the baggage car, shook hands with Mr. Brumley and saw Hagan approaching. Hagan was carrying his grip in his right hand. He shifted it to his left hand and threw his right hand to his coat pocket. He threw his suit case up and toward me and I commenced firing. He backed away, and about the second shot his suit case flew out of his hand.

"The train was moving, and he turned and went but a few feet and fell in the track where the ladies' coach had stood. I was struck by a rock thrown by Mr. Casseday, and I told him to stop, for I did not want to hurt him. Hagan got up and walked across the track and sat down. Mr. Casseday ran to him and put his hand in Hagan's coat pocket. I told him I knew what he was doing and he said it was none of my business."

Asked if he applied any epithets to Hagan, Barbour, without hesitation, said: "Yes, I called him a cur, a coward and a midnight assassin."

Barbour was asked to testify regarding a threat made against him by Hagan and communicated to him by C. H. Barrel, former Assessor of Bullitt County, now deceased, but the Commonwealth objected and the jury was again excused while the question was argued. Argument on the admissibility of the testimony regarding the threat consumed the remainder of the morning session, and an hour after noon.

The court overruled the objection of the Commonwealth and Barbour was allowed to testify that Barrel told him Hagan had said to Barrel in a conversation regarding the former troubles with Barbour: "The next time it will be a dead man instead of a dead horse."

Barbour denied the statement made by W. H. Escott that Barbour had told him he knew that Hagan was back in town. Barbour said he told Escott he had heard "Kinch" Jones was back in Kentucky. This was in reference to Barbour's claim that he was carrying a pistol because he had heard that Jones was hanging around Huber's Station, and he feared an attack by Jones.

Barbour was submitted to a withering cross-examination by Mr. Kohn. He donned the coat he wore the day of the killing. A deep pistol pocket had been made on the left inside. He said he had the pocket made expressly for carrying his magazine gun. He said it was made about a month previous to the killing. Asked if he had not previously testified that the pocket was installed several months before, he said: "I don't remember."

Barbour repudiated the newspaper accounts published at the time of the killing. At the suggestion of Charles Carroll, he took a copy of The Courier-Journal of the day following the tragedy to read the account. As he opened the paper to the page containing the story, the tragic affair was vividly brought back to him by the headlines and a two-column picture of himself. He trembled slightly, but quickly recovered himself, and in a clear voice read the account to the jury, repudiating the main points.

Barbour denied saying to Hagan after he fell, "You are crying now like a stuck pig." and said when he made the statement he was speaking to Samuel Casseday. Barbour said he never heard Hagan exclaim, "O, Lordy," and throw his hands in the air. He said Hagan kept his hand in his pocket until Barbour said, "Take your hand out or I'll shoot your head off."

Barbour denied that Hagan ever had his back turned, notwithstanding the testimony of the physicians in the introduction of the dead man's clothing with the bullet hole through the rear of the trousers. He was asked to point out the hole in the trousers, but the objection of his counsel was sustained.

Barbour admitted that he saw no pistol, and had no reason for thinking Hagan armed except the fact that he put his hand in his pocket.

After Barbour had completed his testimony, the defense put his sister, Mrs. Lewis, on the stand. She testified to some of the incidents preceding the shooting, but said she saw none of the shots fired, as her sister fainted and required her attention.

Following several testimonies of a minor nature similar to ones given at the earlier trial, court was adjourned for the day.

The next morning brought a parade of character witnesses to the courtroom. Charles R. Long, president of the Louisville Water Company, Gen. John B. Castleman, W. O. Bonnie, Charles R. Hermany, chief engineer of the Louisville Water Company; James McFerron, an automobile dealer; Samuel Jones, president of the Commercial Trust Company; Caldwell Norton, of the real estate department of the Commercial Bank and Trust Company; Lewis McCleary, assistant secretary of the Louisville Water Company; G. H. Hikes, a broker; W. L. Stith, a street railway inspector, and Charles Potter and Baxter Kreamer, clerks in the office of the Louisville Water Company, came down from Louisville to testify to Barbour's character. They were examined immediately after arrival in order that they might return to Louisville. Bud Monroe, former Sheriff of Bullitt county and Lawrence Holzclaw and J. T. Funk, farmers, also testified to the defendant's character.

William Bridges again testified that about two years before the tragedy he took a pistol to Hagan from his brother-in-law and said Hagan said: "Don't tell Barbour." On cross-examination he admitted a close friendship for Barbour.

George James testified that he was sitting on a chicken coop in the baggage car when the train reached Huber's and left the train with Barbour. He saw Hagan approaching. He changed his suit case from his right hand by his side. Barbour struck Hagan with a folded newspaper, knocking off his hat, and immediately followed it with a shot.

When he was questioned regarding alleged discrepancies between his testimony and that given in former trials he took a transcript of his former evidence from his pocket and in response to Mr. Kohn's question said it was evidence in the examining trial before Judge Leroy Daniels.

"Where did you get it?" said Mr. Kohn.

James hesitated, but Judge Jones told him to answer the question and he said: "Mr. Straus gave it to me Saturday."

Dr. G. A. Hendon, of Louisville, testified that he could not say positively whether or not the shot that penetrated Hagan's abdomen entered from the front. This statement added a bit of mud to the waters of earlier testimony by doctors who had treated Hagan.

Additional witnesses, attorney Ed Humphrey, James Barrett, a banker, and Rudy Finck gave evidence regarding Barbour's character. On cross-examination, Mr. Finck said Hagan's reputation for peace and quiet was excellent. Asked if Hagan was in the habit of going armed, witness said: "No, not during the eleven years I knew him."

William Hall again testified that he was building a chimney on Barbour's house the afternoon of the killing. He heard two shots and saw Hagan backing away holding his suit case in front of him with his left hand and with his right hand on his hip. Barbour was shooting at him. On cross-examination, he said Hagan's hand was not in his pocket, but on his hip. The other witnesses for the defense had said Hagan's hand was in his coat pocket.

John Quick was asked if Hagan was a habitual pistol "toter," and said he had seen Hagan armed three times in seven years. On each occasion he was searching for cattle.

Hugh Downey, who formerly worked for Hagan, testified as to the alleged proposition made to him by Hagan, in which he was offered land in return for killing Barbour.

On cross-examination Downey said he agreed to the proposition, and took a gun Hagan offered him. He assigned no reason for his failure to commit the murder as he alleged Hagan had requested.

Again, the prosecution brought numerous witnesses to the stand to impeach Downey, by declaring that he could not be trusted to tell the truth under oath.

Testifying for the Commonwealth, Clarence Croan said he never knew Hagan to go armed. Mr. Croan said "Kinch" Jones was working for him for two weeks prior to the killing of Hagan. This statement was given to show that Jones was not loitering at Huber's Station at that time.

After each side offered witnesses to support or deny the contention that Hagan went about armed, court was adjourned for the day.

On Wednesday the courtroom was crowded as residents from throughout the county had come to court in anticipation of hearing the arguments.

The final witnesses called included Bertram Webb, called by the defense to contradict testimony introduced by the Commonwealth relative to the statement given to the press on the night of the killing. Then the Commonwealth recalled W. H. Escott, who said Barbour never mentioned "Kinch" Jones on the occasion when he told Escott he heard Hagan was back the day preceding the tragedy. Barbour, in his testimony, said he told Escott he had heard Jones was back from Alabama, instead of Hagan.

At the conclusion of Escott's testimony the jury was excused while the question of instructions was being argued. Counsel for both sides asked to submit instructions, but were overruled.

At 10:45 Judge Jones began his instructions to the jury. The instructions covered murder in the first degree, voluntary manslaughter and self-defense. They were not lengthy, and the charge to the jury was concluded in five minutes.

The Courier-Journal reported, "Charles Carroll, for the defense, commenced speaking at 11 o'clock. At the outset Senator Carroll reminded the jury that the time is approaching when "peace on earth, good-well to men," will be proclaimed throughout the land, a time when prejudices should be forgotten. He argued exhaustively on the self-defense instruction and made a strong plea for his client. Senator Carroll spoke about an hour. During the argument Mrs. Barbour, with her three-months-old baby in her arms, sat beside her husband.

"Attorney James Irwin, of Elizabethtown, followed with a forty-five-minute speech. Mr. Irwin attempted no flights of oratory, confining his talk to a review of the evidence.

"It developed today that Juror McBride is related to Attorney Irwin. Asked if McBride is his wife's uncle, Mr. Irwin said: 'Well, he is related to her, but not closely.'"

"Aaron Kohn began his argument for the State at one o'clock, and for two hours held the attention of the jurors and the crowded court room with an eloquent plea for the administration of justice for what he termed the cold-blooded murder of a defenseless man. He paid respects to Juror McBride in impressing the jury with the solemnity of their oaths, which he said, demanded that they should be free of any prejudice such as might characterize their verdict if they were related in any way to the defendant or his counsel. He referred to the 'lugging' of Barbour's family into the court room as nothing more than an attempt to gain sympathy.

"Mr. Kohn delved deeply into the evidence and bit by bit put it before the jury in one of the most impressive arguments ever heard in the Bullitt Circuit Court.

"Judge William Carroll followed Mr. Kohn with a lengthy argument, in which as appeal for mercy for the family of the defendant was made. In opening, Judge Carroll said he wished to impress the jury with the fact that he was not the hired attorney of the accused, but that having watched Barbour from childhood and having tasted of his kindness, his part in the case was a token of gratitude. Judge Carroll spoke for an hour, and was followed by Attorney L. A. Faurest, also for the defendant."

This concluded the day's events. The long journey to a conclusion was almost over.

As Thursday's session began, Judge James P. Tarvin spoke for the prosecution. He was followed by Nat Halstead and Frank P. Straus for the defense. Commonwealth's Attorney D. A. McCandless closed for the prosecution about 4 o'clock, and the jury then retired to their room to vote.

Shortly after 5 o'clock the jury announced that they had reached a verdict. This was read by the foreman, who simply said: "We, the jury, find the defendant not guilty."

The newspaper reported, "It is understood that on the first ballot the jurors stood seven for acquittal and five for conviction, but the minority soon came over to the other side and voted for acquittal.

"The verdict of the jury was received with great delight by the friends of Barbour, and after court had adjourned they grew demonstrative around the depot and in the town cheering him loudly."

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