Murder or Not?
First Trial Delayed - December 15, 1904

Thursday morning's weather encouraged folks to be out, and many showed up at the court house. Barbour's case was called after lunch, and his attorneys immediately requested time to prepare an affidavit requesting a postponement, citing the failure of key witnesses to appear as summoned. Time was granted and most of the afternoon was taken up as they prepared the document.

When they finally presented the affidavit to the court, it cited at least six missing witnesses, all of whose testimony was necessary to their defense. The one that caused the most immediate response from the prosecution side had to do with Robert Hazel.

This affidavit, signed by Barbour, stated that Robert Hazel was introduced as a witness for the Commonwealth and testified that he was on the rear platform of the rear coach of the train that carried Hagan and Barbour to Huber's Station. He testified that he saw the shooting from beginning to end, and further testified that he saw Barbour shoot Hagan in the back when Hagan was unaware of his presence.

Barbour's affidavit further stated that Hazel was not on the train at all, and that a warrant for his arrest on a charge of perjury had been issued both in Jefferson County and Bullitt County, but that Hazel had not yet been arrested. However, it claimed that Hazel had been in touch with one of Barbour's counsel, and had sent a written statement regarding his earlier testimony.

The affidavit indicated that this statement from Hazel came voluntarily, and that Hazel was made to understand that the defense could not, and would not provide him with any assistance or compensation. He was told that if he sent this communication, "counsel would submit it to the proper authorities to be used for whatever purposes it might be used; and in compliance with said promise said counsel did submit the written communication from said Hazel to the County Attorney of Bullitt County, and to the Commonwealth Attorney of this district to be disposed of in any way they might see proper."

This statement, as transcribed in the affidavit, read as follows:

"I telaphoned to Know How Hagan was the Day I Herd He was at the Infirery and R. J. Hagan wanted to Know who it was and wher I lived and sed he was coming out to see me But Never come sent a man that I Never seen befrore and Had I talk with me and then just kept Runing after me some four or tive thimes and I thought No moure about it and the first thing I knowed I was sommoned Bye a poeleice to attend cort at Shepherdsville in the case of Hagan abd Barbor and the last time I was tha Telaphoned at the place whe I was working sed I was wante again at Shep- and I told them I was Not coming and when I got Home that Night I was sommoned and the Day of Trial I wa given whiskey By two of Hagan witnesses and Part of the whiskey furnish by Capt Hagan as I see him get it out of grip and give it to Clarence Croan The first summon I got to goe to Shepherdsville I did not know what tha even wanted with me I Had No Idia of Beeing a witness untill I was Talked to gulied into it and I Have Had a Thalk with Hagan preires from the Trial and the sed if I wood goe away and stay away tha wood give me money to goe on.

(signed) Robt Hazel"

Based on the alleged statement by Robert Hazel, the affidavit charged that Hazel "had been induced to swear what he did swear in said motion and hearing by Robert Hagan and by Capt. Frank Hagan, one the brother and the other the father of the decedent Hagan," and "he has been offered money by the private prosecution in this case, to-wit: Robt. Hagan, to stay away from this court." Also charged was that Hazel "was taken to Huber's Station by Robert Hagan and by one of the chief counsel for the private prosecution in this case, and was there drilled as to his testimony concerning the various places at Huber's Station where the shooting occurred."

The stated purpose of this affidavit was to obtain time to produce the required witnesses for the defense. In such a case, if the prosecution admitted the truth of what was stated in the affidavit, then there would be no need to delay the proceedings, and thus the defense challenged the prosecution to either admit that this statement by Hazel was true, or agree to a postponement of the trial so that the defense could procure its witnesses. This the prosecution would not do, and the judge continued the case to March 28, 1905, the second day of the March term of the Bullitt County Circuit Court.

Up to this time, the prosecution had the upper hand with regard to publicity and public opinion. Certainly the press coverage shows this to be true. With this charge from Hazel, as well as another regarding Hugh Downey that we will discuss later, the prosecution, in particular the Hagan family, found itself having to respond to charges against it.

This they were quick to do. Robert Hagan was seen following the judge's decision by a Courier-Journal reporter, and made the following statement:

"In order to secure a trial, with my fellow-counsel, I was willing to admit that Hazel and the other witnesses named in the affidavit would testify to the statements contained therein, as the Commonwealth was in a position to prove by numerous witnesses that they were absolutely false. This affidavit, sworn to by Barbour alone and backed by a letter purporting to have been written by one Hazel, is as malicious and vindictive as was the crime for which we are trying to punish him. The statement is as false as the two contradictory statements which he made respectively, on the night of the killing and on the occasion of his preliminary hearing."

Then the next day, formal statements were made by Robert Hagan and his father which were published in the newspaper verbatim, with no response elicited from anyone on Barbour's defense team. Robert Hagan's statement follows:

"This affidavit of John R. T. Barbour, backed by a paper purporting to be signed by one Robert Hazel, is an infamous falsehood, and filed not for the purpose of securing a continuance, for it is not evidence in this for any purpose, but is a premeditated attempt on the part of Barbour and his attorney to injure my character and standing in this community and my father's.

"Some time ago it was published in the newspapers that a warrant had been taken to arrest Hazel for perjury, and a day or two after that Straus told the attorney for the prosecution that he intended to have the Hagans in it before he was through, showing on his part a malicious desire to injure us and an effort to create sympathy for the horrible and inhuman assassin of my brother. We had eight or ten eye-witnesses of the assassination of my brother who are men of the highest character and reputation, of undoubted integrity and honor, and it is not probable that we would, with such testimony at our back as that, attempt to bribe such a man as Hazel is said to be. There could be no possible reason to do so, for we had ample testimony of the assassination with him or any other witness.

"The facts as to Hazel are these: On August the 12th, about 2 p.m., which was before my brother died, and while I, with my father and family were at his dying bed, Hazel called up my office by telephone and asked to see me. Mr. Emmet Slattery, a well-known young attorney at the bar, answered the telephone and asked what he wanted. He said to Mr. Slattery that he was present and saw Barbour shoot my brother, and asked for me to come out and see him. He said that he lived on Linn street, No. 738. Mr. Slattery said to him I could not come out, but he would come in my place if necessary. Mr. Slattery did go out on Saturday and took his affidavit, which is substantially the same as he testified to on the examining trial. A short time before the trial, at his request, I went to see him. He reiterated to me substantially the same as was in his affidavit. I then told him I would have him summoned as a witness, and did have him summoned as such. Neither I nor my father knew Hazel and never heard of the man before he called us up, and do not know now that he would state what Barbour says he would in his affidavit. If he does he will be sent to the penitentiary.

"Afterwards he came to the depot on the effort of Barbour to give bail. The counsel in the case desired to see the ground on which my brother was assassinated before the trial. There are two trains leaving Louisville in the morning, leaving about twenty or thirty minutes apart. We concluded to take the first train out and get off at Huber's and look at the ground and take the next train to Shepherdsville twenty minutes later. Hazel went along, being at the depot ready to go, and pointed out to us the places where the shooting occurred. Neither I nor the counsel had been on the ground after the shooting and I knew nothing at all about where it was done, and Hazel attempted to show it to us, as he had a right to do, if he had been present and saw it, or any other witness. Not being present at the shooting ourselves it was impossible for us to have shown him or any one where it was done, as alleged in Barbour's affidavit.

"Neither my father nor any counsel for the prosecution ever saw Hazel before the morning of the examining trial in Shepherdsville.

"After the warrant was sworn out against him for perjury he came to our office and my father and myself both told him that if he was innocent of this charge as he claimed to be, he had better get his witnesses and at once go to Shepherdsville and surrender and stand trial; that if he would give us the names of his witnesses we would see to it that they were there and would have him properly defended; but if he was not innocent we would wash our hands of him as we wanted no testimony and nothing to do with any man who was guilty of perjury in this case. He promised to get his witnesses at once and let me know who they were. Some time afterwards he telephoned to me at my residence and asked me if I would give him some money with which to move. I told him if he wanted to talk with me to meet me at my office, and I came to my office with Mr. W. D. Wolf, and when I got to the office I found Hazel waiting for me, and Mr. Slattery was also there with a number of gentlemen who were having a business meeting.

"Mr. Wolf, Mr. Slattery, Mr. Hazel and myself had a conference together at the office, and in that conference I asked him if he had yet got his witnesses and told him to give Mr. Slattery their names and addresses and that he would prepare his case for him; but I refused positively to advance him a cent of money to leave the State or for any other purpose, and again advised him to surrender. I had no conversation with Hazel except in the presence of Mr. Wolf and Mr. Slattery. Since then I have neither seen nor heard anything from Hazel until he turns up in the possession of the defense, who, while pretending to want to arrest him on a warrant, yet claim to be able to communicate with him, and are the only ones who can. They seem to have his address, I have not, but I have offered a reward of $50 for his arrest and will guarantee to secure his arrest before long. I will then leave him the alternative of telling the truth about this matter or will prove the falsity of his statement by Mr. Slattery, by Mr. Wolf, by Mr. Marret, by my father and Mr. Kohn and others, who know that I was at the bedside of my dying brother at the time he called up."

His father, Frank Hagan, Sr., issued the following statement:

"I had no acquaintance whatever with Robert Hazel. I never saw him in my life until I met him at the depot on his way to Shepherdsville to testify for bail. I never spoke to him about the case in any way in my life. I never asked him what he knew or what he would testify to. I did give a pint of whisky to an old friend, Clarence Croan, and heard him invite some gentlemen into his office to drink. I did not drink myself, nor did I go into the office where they were. That was about 10 o'clock a.m., and Hazel testified that day about 5 o'clock p.m.

"I do not know that Croan knew that he was a witness in the case; I never said a word to Croan about him of any kind. Afterward, when the warrant was sworn out against him for perjury, he came to my office, and I told him in the presence of my son, Robert Hagan, that if he was innocent of the charge, get up his witnesses and surrender himself, and I would see that he was defended and not prosecuted, but if he was guilty I would have nothing to do with him. Since then I have not seen Hazel or heard of him until I heard that he had called up my son, begging for money over the telephone."

To buttress their statements, they included an affidavit from the lawyer, E. P. Slattery which reads in part as follows:

"On August 12, 1904, on the same day on which Francis Hagan died, and about the hour of 2 p.m., one Robert Hazel called up the office of Robert Hagan by telephone and requested to be allowed to speak to Mr. Hagan. He was informed by me that Mr. Hagan was at the bedside of his brother, who was expected to die very soon, and I requested him to state what his business was with Mr. Hagan. Hazel then stated that he was a witness to the shooting of Francis Hagan by John R. T. Barbour; that he saw the whole affair and desired to testify in the case, and requested that Mr. Robert Hagan call to see him in regard to the matter. He gave his address as 738 Lynn street, Louisville, Ky. I informed him that Robert Hagan could not call to see him within the next few days, owing to the condition of his brother and his probable death, and told him that I would try and call upon him the following night, Saturday. On the following night, Saturday, August 13, I did call upon him at his residence, and did take his affidavit, which was signed and sworn to by him before me as notary public, which affidavit is substantially the same as his testimony as reported at the examining trial.

"Afterward, probably three or four weeks ago, I was at my office about the hour of 8 p.m. in consultation with some gentlemen on a business matter, when Mr. Robert Hazel came in and inquired for Mr. Robert Hagan, whom he said he had an engagement to meet there. A few moments later Mr. Robert Hagan came into the office, accompanied by Mr. William Wolf, and Mr Hazel. Mr. Wolf, Mr. Robert Hagan and I retired to the rear office for a conference regarding this case. Hazel then stated to Mr. Robert Hagan that he desired to leave the State and to go to Indiana, and requested Mr. Hagan to furnish him with money with which to go away. Mr. Hagan positively declined to advance him any money for that purpose, and told him that if he was guilty of the charge of perjury, which had been brought against him, he desired to have nothing further to do with him, and that he ought to be punished.

"I then volunteered to defend Hazel on the perjury charge, if he were innocent, and I requested him to furnish me with a list of his witnesses; and Hazel declared that he was innocent, and then and there did furnish me with the name of one Smith King, who, he claimed, saw him on the train coming in on the night of the day on which Francis Hagan was shot. I made every effort to locate Mr. King by inquiring at the L. and N. railroad offices, where King was said to have been employed, and ascertained that he was no longer employed by that road. On the night aforesaid I requested Hazel to communicate with me further in regard to the names of any other witnesses he might have, but since that time I have not seen said Hazel, nor have I heard from him in any way whatsoever."

With these statements, the Hagans believed they had shown themselves innocent of the charges levied against them in the Barbour affidavit. Indeed, the defense never called Robert Hazel to the stand in later proceedings. Hazel was arrested and charged with false swearing. On September 8, 1905 he was sentenced to a year at hard labor in the penitentiary at Frankfort.

As for the Barbour defense, they had accomplished one goal of gaining a continuance, giving them more time to prepare for trial. Perhaps they had also improved Barbour's standing in public opinion by calling into question the honesty of the Hagans. Finally, with the continuance, they had another opportunity to seek bail for their client.

As soon as they gained the continuance, Barbour's lawyers requested that he be granted bail until his trial date. The judge granted them a hearing which began the next day.

To expedite the proceedings, it was agreed that only witnesses as to facts would be heard; not character witnesses. The defense began by calling Barbour to the stand for his first testimony before the Circuit Court.

Questioned by his lead attorney, Judge William Carroll, Barbour made an opening statement: "My name is John R. T. Barbour, and I live at Huber's Station. I moved from Louisville fifteen years ago. I met Francis Hagan in Louisville and during my life there we were intimate friends. Hagan preceded me to Bullitt County about two years. After his marriage we lived about 400 yards apart, our lands adjoining. I met Hagan once or twice each day."

Carroll asked him "What was Hagan's habit of carrying concealed and deadly weapons?" Before he could answer, Mr. Kohn for the prosecution objected, and his objection was sustained. Barbour was, however, allowed to tell of Hagan's habit of carrying weapons at the time of their original trouble, in 1903.

An objection by Kohn to Carroll's question if the witness was ever attacked by the deceased with a deadly weapon resulted in a lengthly argument between the attorneys, Kohn and Carroll. Both attorneys read lengthy opinions of the Court of Appeals covering the case, thus consuming about an hour. As this was a hearing before the judge alone, the court overruled the objection of the Commonwealth, and Barbour answered that he was "waylaid, attacked with a deadly weapon, and wounded by the deceased."

Barbour continued, "After that attempted assassination we were, of course, bitter enemies. I kept out of Hagan's way. When we happened on the same train I rode in the baggage car or ladies' coach."

Carroll asked him what precaution he took when going home late at night, and his reason for such precaution. Barbour responded: "I was expecting to be waylaid by Hagan at any time, and when on two or three occasions I got home at 2 o'clock in the morning I always had members of my family or a body guard to meet me."

Barbour also claimed that he had rented a house in Louisville, and was moving the day of the shooting.

Cross-examining Barbour, Kohn asked, "Did you not hate and despise Hagan?" Barbour tried to evade the question, but finally admitted that they were enemies. Also, when pressed on his statement that he knew that Hagan was armed at the time of the shooting, Kohn forced Barbour to admit that he did not know whether his victim was armed, but thought he was.

The newspaper reported that under Kohn's intense questioning, Barbour frequently used the terms: "I cannot say" and "I do not remember."

After Barbour left the stand, Dr. Grant, who attended Hagan at Gray Street Infirmary was called. With Dr. G. A. Hendon and Dr. Percival, the house physician, he operated on the wounded man. The newspaper indicated that Grant said it was impossible to determine the points of entrance of the bullets, and that it was impossible for Coroner Kelly or any other person to determine the point of entrance after death. Dr. G. A. Hendon later testified to the same facts, again according to the newspaper. However, as we will see in later testimony at Barbour's trial, counsel objections during Dr. Grant's testimony interrupted it before he could conclude his detailed explanation.

Brackel, the baggage master, employed by the Louisville and Nashville Railroad Company, testified that Barbour often rode in the baggage car to avoid meeting Hagan. Cross-examined by Mr. Kohn he said Barbour had ridden in the baggage car for years before his trouble with Hagan.

Ike Wright, conductor on the train on which Hagan and Barbour rode that afternoon, said Barbour frequently rode either in the baggage car or ladies' coach to avoid Hagan. He saw them leave the train, but paid no attention to them until the shooting.

When cross-examined by Kohn, Wright said he heard two shots. He looked in the direction from which the shots were fired and saw Hagan running north, very fast. He was closely pursued by Barbour who was firing at him. He was positive Hagan's back was toward Barbour. He said the train was standing at the station during the trouble, contradicting Barbour's earlier statement that the train was moving when the shooting started. He said the men ran about sixty-five feet. According to the newspaper, "the testimony of Wright caused worried looks on the part of the attorneys for the defense, and it was evident they were disappointed in him."

Mrs. Lewis, Barbour's sister, was called and repeated her testimony in support of her brother. She was positive Hagan backed away, facing Barbour all the time.

J. J. Blankenship, Jr., Barbour's nephew, testified that he heard Chris Barrell tell Barbour that Hagan had told him (Barrell) that he was through with the State, but not with Barbour; that the next time it would be a dead man rather than a horse. Blankenship was allowed to testify to this conversation since Mr. Barrell was recently deceased.

James Kelly testified that Hagan told him he was going to kill Barbour a short time before the tragedy. He said, however, he had not communicated the threat to Barbour.

P. H. Smithers, baggage master at Huber's Station, was called to the stand. He testified that he saw Robert Hazel and two other men at the station the day following the shooting. The attorneys for the defense sought to bring out the fact that a discussion took place between Hazel and the witness, but the Smithers denied the alleged discussion. He said that nothing unusual occurred on the day mentioned, and said the attorneys and Hazel simply viewed the scene in order to become familiar with the surroundings.

William Hall, of Louisville, who was building a chimney on Barbour's house the day of the shooting, corroborated the other witnesses for the defense. However, he swore that although Hagan backed away from Barbour, the latter continued firing.

The last witness of the day was Joe Horn who testified that he was at a fair in August, 1903, and heard Hagan tell some man, unknown to him, that he wanted to kill three men before he left Kentucky. The men were Grant Kelly; John Barbour and a black man, whose name he did not remember. He said he paid no attention to the threat and did not communicate it to Barbour. He created some amusement when, in reply to Mr. Kohn's request that he name a single man who saw him at the fair, he slyly asked the attorney if by a single man he meant a married or unmarried man.

As the last train for Louisville was soon to leave, court was adjourned to the following Monday.

When court reconvened Monday morning several witnesses were called to support the contention that Hagan usually went about armed with a weapon. Among them was Miss Ada Jones, the jailer's sister, who testified that Hagan told her two years earlier that he never left his home unarmed.

Miss Susie Smithers, postmistress at Huber's Station, testified that she saw Barbour in the baggage car. Hagan got off of the ladies' coach and walked south. She turned to go into the rear of the office and heard three shots. She turned on the third shot and saw Hagan backing away from Barbour. The latter was following, shooting as he did so. She also said Hagan had one hand up with the palm forward. She could not tell which hand was raised. She said Barbour called Hagan a midnight assassin after he had fallen.

Her statement that Hagan "walked south" differed from other testimony that had him following Casseday northward.

George James, of Bowling Green, who had been on the train in the baggage car with Barbour, said he boarded the baggage car at Louisville with Barbour, and that Barbour got off while the train was slowing up at Huber's Station. James said he waited for the train to stop before getting off. He said he saw Hagan get off and walk toward Barbour, shifting his suit case from his right to his left hand, and that his right hand was then at his side. He said Barbour struck at Hagan and simultaneously he heard a shot. Hagan backed away while Barbour followed, shooting at his victim.

According to the newspaper, this statement was in direct conflict with James' former statement at the examining trial, and he was put under a vigorous cross-examination by Mr. Kohn. His former statement was read and in material points he denied making the statement. He denied that Barbour followed Hagan sixty-five feet, and denied that Hagan's left hand was at his side as read from his former statement. He said, in answer to Mr. Kohn's question, that Hagan made no demonstration whatever toward Barbour before the shooting, and said he did not know whether Hagan reached for either pocket.

The defense closed with this witness and Commonwealth's Attorney Wood moved that the motion of the defense for bail be overruled, but his motion was denied, and he called Samuel Casseday as the first witness for the prosecution.

Casseday's testimony was consistent with his earlier statements. He stated, "I got off the train at Huber's and started toward my buggy. I heard a shot and turned saw Hagan running with Barbour following him, firing as he ran. Hagan fell and Barbour leveled his revolver at him. I threw a rock and struck Barbour, at the same time telling him not to shoot an unarmed man. He turned the gun on me and said, 'Don't you get in this or I will kill you.' I ran to Hagan's side and assisted him to my carriage."

Daniel J. Brumley, former roadmaster for the Louisville and Nashville Railroad Company, was next called to the stand. According to the newspaper, Brumley testified that he went to Huber's Station to purchase some land from Barbour's sister. He left the train and met Barbour at a point about the middle of the baggage car. He said Barbour took a step forward, and the first two shots were fired. He turned and saw Hagan run back. Barbour followed, shooting as he ran. Hagan turned as the fourth shot was fired and ran to the end of the train, where he fell. He said Hagan made no demonstration toward Barbour. He said he did not see first two shots or the beginning of the trouble. He was positive Hagan's hands were at his sides, and neither was in his pocket.

Elijah Wiggington, of Bardstown, a new witness, was called. He was in the smoker and heard two shots. He testified that he looked out as the third and fourth shots were fired immediately beside the window where he was seated. He said Hagan was running and Barbour followed, firing at Hagan. He testified that Hagan had his hands on his head, apparently tearing his hair in agony. This was the first witness to make this claim.

Coroner Harris Kelly was called, and detailed the autopsy. He stated positively that the bullet which caused death entered from the back and passed through Hagan's body. He cited various authorities to prove that it is possible to determine the points of entrance and exit, contradicting the apparent earlier statements of Drs. Grant and Hendon.

Dr. Percival, who was later called to the stand, said he assisted Drs. Grant and Hendon in the operation on Hagan, and was positive the bullet entered from behind.

Young Samuel B. Casseday was called to the stand and stated he was holding his father's horse at the depot when the first shot was fired. He turned and saw Hagan running and saw Barbour following, firing as he ran. The defense attorney tried to get him to admit telling Barbour a few minutes after the tragedy that "if he had not killed Hagan, Hagan would have killed him." He insisted that he made no such statement.

He said he met Barbour a few minutes after the shooting, and, touching Barbour on the shoulder, said: "Understand, Mr. Barbour, I am not in this." In answer to a question by the prosecution, he said Barbour still had his revolver in his hand when he made that statement.

Following several other witnesses for the prosecution who told essentially the same stories, Barbour was called back to the stand in rebuttal. Among other things, he said Samuel B. Casseday did tell him in the telephone office just after the shooting that if he had not killed Hagan the latter would have killed him.

The last defense witness was Jailer Jones who said that Dr. Percival on the previous Thursday had told him he did not make an examination of Hagan's body sufficient to determine the point of entrance of the bullet, thus casting doubt on the doctor's earlier statement to the contrary.

Kohn opened the closing argument for the prosecution. He read numerous opinions of the Court of Appeals sustaining his argument against the granting of bail. According to the newspaper, he "bitterly assailed the defendant, to whom he referred as 'the dog, who after shooting down his man without giving him the slightest chance for defense, stood over his victim's prostrate body and denounced him as a dirty coward; a midnight assassin, squealing like a stuck pig.'"

Attorney Frank Straus argued for the defense. He cited several authorities in support of the motion for the liberty of his client, who, in defense of his own life, he said, was compelled to slay his deadly enemy.

Judge Jones overruled the motion for bail, and Barbour was taken back to his cell in the Bullitt County jail. He would be taken to Louisville the next morning to await the trial of his case at the next term of court.

As a side note, on December 21, 1904, the day that Barbour was returned to the Louisville jail, The Courier-Journal announced that "The approaching marriage of Miss Mary Muir, of Bardstown, and Mr. Robert J. Hagan, of Louisville, has been announced by Mr. and Mrs. J. W. Muir. The wedding will take place in Bardstown on February 1."

As Christmas approached, the Hagan family could take some pleasure in the upcoming wedding and in the fact that Barbour was still in jail.

John Barbour was in jail, but not forgotten by his family and friends. Under a headline that read "Santa Claus Brings Happiness Even to Prisoners at Jail," The Courier-Journal reported on the day after Christmas that "many of the prisoners who have influential friends received presents, and in spite of the cloudy sky which made the light in the jail poor and the iron bars across the windows there was real celebration within the confines of the Jefferson County prison. Among the more favored of the prisoners were John R. T. Barbour, Caleb Powers, and James Howard, each of whom received many tokens of friendship."

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