102 Ala. 25, 15 So. 722, 739 (1894)
Evidence was taken at Huntsville by agreement of the parties to facilitate the hearing and to subserve the convenience of the witnesses, although the judges sat as individual members to avoid exercising judicial power away from the seat of government.1
The information charged John B. Tally, judge of the ninth judicial circuit, with willful neglect of duty in failing to intervene to prevent the Skeltons from killing R. C. Ross and with complicity in the murder of Ross by the Skeltons.2 Tally was the brother-in-law of Robert, John, James, and Walter Skelton, whose sister Annie Skelton had been the object of Ross's criminal intimacy.3
Ross left Scottsboro on January 6, 1894, fearing danger from the Skeltons but returned on January 30 because of his wife's illness and stayed secluded until February 4.4 On February 4, Ross left Scottsboro in a hack with armed companions for Stevenson.5 The Skeltons pursued on horseback, overtook the party at Stevenson, and killed Ross by shots from behind the depot platform, telegraph poles, and an oil house.6
In Scottsboro that morning Tally went to the depot.7 After E. H. Ross sent a warning telegram to R. C. Ross, Tally sent a telegram to Huddleston reading "Do not let the party warned get away" with the instruction "say nothing."8
Testimony including uncommunicated intentions and attorney-client communications was excluded.9 The defense offered explanations for the rental of a horse used by Walter Skelton and for Tally's brief meeting with Robert Skelton as the Skeltons departed.10
Whether Judge Tally willfully neglected his duty as a magistrate by failing to intervene when he knew of the Skeltons' intent to kill Ross?11
A judicial officer commits willful neglect of duty when, with knowledge of another's intent to commit murder and an opportunity to intervene officially to prevent it, the officer willfully fails to act.12
No. The established facts demonstrate that Tally knew of the Skeltons' grievance and saw them armed and mounted on the morning of February 4.13 However, the record contains no affirmative evidence that he knew of any murderous intent before their departure from Scottsboro.14 The defense offered explanations for the horse rental charged to Tally and for his brief meeting with Robert Skelton. The absence of proof that the Skeltons disclosed a conditional plan to kill, together with these explanations, leaves the court unconvinced beyond a reasonable doubt that Tally possessed the requisite knowledge at the time he could have intervened.15
Judge Tally is not guilty of willful neglect of duty as charged in the first count.16
Whether Judge Tally aided or abetted the murder of Ross by sending a telegram to Huddleston and keeping watch at the telegraph office?17
Under Code § 3704, which abolishes common-law distinctions between accessories and principals, a person is guilty as a principal in the second degree when he aids or abets the commission of a felony by an act that facilitates the crime or deprives the victim of a chance of life he otherwise would have had, even if the aider is not physically present.18
Yes. The established facts show that after the Skeltons departed, Tally learned they were pursuing Ross with intent to kill, went to the depot, watched for warning telegrams, and upon seeing E. H. Ross's message sent his own to Huddleston directing that the warned party not get away and adding the instruction to say nothing.19
This message caused Huddleston to delay delivery of the warning, preventing Ross from receiving timely notice that would have allowed flight, protection, or different defensive action, thereby facilitating the Skeltons' ambush and depriving Ross of at least one chance of escape.20
Judge Tally is guilty of aiding and abetting the murder of Ross as charged in the second count.21
Related opinions on this issue
Justice Head dissents from the judgment of the court.22 He is of the opinion that the respondent should be acquitted of both charges.23 Justice Head does not believe beyond a reasonable doubt that Tally intended, in sending the telegram to Huddleston, to aid or abet in the murder of Ross.24
Additionally, Justice Head does not believe beyond a reasonable doubt that the telegram of warning would have been delivered to Ross by Huddleston before the shooting began if the respondent's telegram had not been sent.25 For these reasons Justice Head would acquit Tally on the charges of both neglect of duty and complicity in the murder.26