The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1907-01-20
COURT DISCHARGES
THREE WARRIOR MEN
Evidence Not Sufficient To Hold
Them
CHARGED WITH MURDER
Dead Mans Brother Is Chief Witness,
But Testimony Is Not Strong
Enough to Hold the
Defendants.

The preliminary trial of ]. L. Brake,
Jr., ]. B. Savage, Jr., and Chris Ausun'
the men charged with the murder OF
R. d. Blackburn in Warrior, on New
Years night, was held in the first d.
vision of the criminal court yesterday
before Justice Of the Peace w. 5. Rus
SELL After hearing all the testimony IN
the case and arguments had been made
by counsel for the state and the de-
PENDANTS, Judge Russell stated that al
though a crime had been committed, there
was not sufficient evidence to show that
the defendants would be convicted before
a jury. He. therefore, ordered the priso-
ners to be discharged from custody,
Warrior Witnesses Delayed.
After some little delay, caused by the
non-arrival of certain witnesses from
Warrior, who were coming by train the
state announced ready in the case Of
the state of Alabama versus James l..
Brake, Jr., and others, charged with the
murder of R. d. Blackburn
DR.. r. L. Mitchell was the first wit
ness called by the prosecution. He testi-
fed that he was called to attend r. D.
Blackburn on New Years night, about
u o'clock and that he found him suffer-
ing from a gunshot wound in the abdo-
men. The appearances, he said, indicated
that the whole load had entered there;
that the shot was small, like squirrel
shot; he said that Blackburn was wound
ed in the right hand. Blackburn was
taken to Birmingham that night and
In n
Assistant Solicitor Arid, the witness said
that the deceased did not make any
declaration expressing his sense of ap-
preaching death, but did say '"They got
me this time" Witnesse further said that
the wound was the cause Of death.
Fayette Blackburn Testifies.
Fayette Blackburn said he was a
brother of r. D. Blackburn that he and
his brother lived at Warrior and the
defendants also lived at Warrior. Wit
ness said that on. New Years evening
there was a dance given at the house of
a man named Bees and that there was
to be dance at his brothers. house
also; that r. ID. Blackburn went to Bees
house and took the musician away as he
had previously engaged him; that later
in the evening Brake said he would kill
Blackburn if he Had to use hot lead to
do it and that Chris Austin said he
would assist Brake and that they would
get the musician if they had to kill
Blackburn.
Witness said that he and his wife went
to r. D. Blackburns house about 10
o'clock that night and left there to go
1. ha
ing Savage's saloon he heard whispering.
and that Brake pointed shotgun at him
as he went by the saloon door; that wit
ness said, bud, l know you; don't shoot
me- and that then someone spoke and
Brake turned the gun aside. Witness
said he went home, and before he
reached home he heard four shots, but
did not pay any particular attention to
them; that later on someone came to his
house and told him his brother was shot
and that he went to his brothers. house.
The witness said he asked his brother
who shot him and that he refused to
tell. 81 called over several Names said
the witness, "but my brother said No,
no.. / then called the names of the de-
PENDANTS and he shut his eyes and
clenched his. teeth" Witness said his
brother promised to tell him all about it
in the morning. my brother said he
would not live until tomorrow night"
Cross-Examnation
The witness was cross-examined at con-
siderable length about the light on that
night He said it was moonlight, but
couldn't say what stage the moon was
in, said 1t was somwhere in the sky
Witness again described the position of
the defendants when he was passing the
saloon, and showed the attitude of the
man who put the gun in his face. Said
he saw grave stones and skeletons and
death as he looked into the muzzle OF
the gun.
Defendants Witnesses.
With the conclusion of Fayette Black
burns testimony the state rested it's case
and the defendant called Henry Patton, a
negro, who testified that he heard shots
in the direction of that saloon, that he
was going there to buy bottle of whisky,
but the shooting scared him and he
turned back. The witness said that Fay
cite Blackburn offered him 90 cents to
a thousand dollars If he would say that
Brake asked him (witness) to get Black
burn out while he (Brake) shot him.
Jack Alison Testfles.
Jack Ashton, night foreman at the
round house at Boyles, testified that he
saw r. D. Blackburn the night he was
brought down from Warrior on the train;
that while Blackburn was waiting for the
employees train to take him from Boyles
to Birmingham, he told witness he had
been shot, but that he did not know by
whom or for what.
J. f. Denmore and Alexander Hutch
inson, employed in the round house at
Boyles corroborated the testimony of Ais
ton, in which the deceased said he did
not know who shot him.
Rebuttal Evidence.
Fayette Blackburn, recalled, said that
he did not promise Patton so cents or
thousand dollars If he (Patton) would
swear that Brake asked him to get Black
burn out while she shot him.
Arguments Made.
Assistant Solicitor Arid addressed the
court, arguing that the defendants should
be bound over to the grand jury.
Attorney Erie Pettus addressed the
court on behalf OF the defendants.
When the arguments were finished
Judge Russell promptly rendered his de-
cision discharging the defendants
Immediately after the announcement