The Montgomery advertiser., 1901-07-07

deiicacy of every delegate upon the
 floor. It is a provision that occurs in
 | great many Constitutions--it occurs
 in the recent Constitutions that have
 been adopted, and the phraseology is
 copied bodily from the Constitution of
 Mississippi. MT. President, the excuse
 that is made for mob law and lynch
 law in this country is the difficulty and
 embarrassment of attending the trial tn this kind ofcasss. The prosecutrix-
 and 1t is q terrible ordeal to put one
 through-to compel ;he prosecutrix in
 this sort of case to go into court house and face a large and interested audience of idlers and people prompted there by curiosity to tell a tale that IS
 more painful than anything that could
 be imagined. Mir. President. ] think
 the amendment is a most reasonable one and a most proper one for the pro
 lection of the prosecut-ix, and for the protection of the young boys and idlers
 that attend this character of eases. out of idle curiosity.
 MT. Barefield-I would like 10 ask
 the gentleman if the Legislature can- not provide for that.
 MT. Reese-No. sir, not with this pro- vision in the Constitution.
 The provision of Section 2 here. is that trials must be public. and unless this amendment to the provision is put
 in here all trials must be public. It has been suggested to by by some gentle men on the floor that in some parts of the State Judges have adopted the sug- Eestion made in this provision. If 1t has been done. 1t was contrary to the Constitution of Alabama. This same idea is embodied in an ordinance that has been introduced here and sent to the Judiciary Committee. but In exam ming the Constitution of other States, l find that 1t appears as a proviso in the preamble and bill of rights.
 MT. Espy-I move to table the amendment offered by the gentleman from Dallas.
 IA vote being taken the amendment was tabled by a vote of 57 ayes to 34 noes oroivision.
 MT. Lomax-I desire to state to the Convention that in the section as re- ported by the committee two changes have been made. One is by inserting in the 4th line the words: ito testify in all cases in his own behalf if he elects so to do" and by adding at the end of the section: but the General Assembly may by general law provide Tor change of venue for the defendant in all prosecu- tions by indictments. and that such change of venue may be heard and de- termined without the personal presence of the defendant so applying. The hrst change merely puts into the Con- stitution what Is now the established law. the right of the defendant to tes- tify in his own behalf; and the second is merely intended to permit changes nf fn ha in fhnQA in which, owing to great public excite ment in reference to the crime commit ted. the person charged with the crime may be in danger of lynch law if car ried to the scene of the crime shortly after its commission. This permits courts to hear and determine applica- tions of that sort without the personal attendance of the defendant. I move the adoption of the section as reported by the committee, and on that call for the previous question, unless some gen. tleman desires to speak. l don't care to shut off debate at all.
 MT. Walker (Madison)-I wish to of fer an amendment.
 The clerk read the amendment as fol- lows: Amend by striking out all of Section after the words Due process of law on line s.
 MT. Walker-The words proposed to be stricken out by this amendment al- low an application by an attorney for a change of venue without the presence of the defendant. It occurs to me that that is a very considerable innovation upon the established rules of law, and is a dangerous one. The result of 1t would be that a defendant, especially if he had obtained bail before the change of venue was made and gone to in n until if was determined that the change of venue be allowed, and might elect to remain in Texas, if it were refused. It has been an established rule in the ad- ministration of criminal law as far back as we have any knowledge, that the personal presence of the defendant in criminal cases shall always be required, and the purpose of that requirement. Is that the defendant may be in the hands of the court, so that the visitation of the law upon him shall not be escaped. A provision of this kind would defeat that purpose of the law. I realize the danger that was in the minds of the members of this committee in putting this provision in here, but it is 8 rec oknition of the powerlessness of the law as now administered. l do not think that recognition itself should go into the Constitution. The thing to be done is to provide such safeguards that recognition of the powerlessness of the law shall not be necessary to provide for the safety of the defend- ants to make an application of this kind under the conditions referred to by the chairman of the committee. Why, gentlemen, 1t is an established rule of law that a defendant cannot be heard in a criminal case by any court unless he is practically within the cus- tody of the court, and if he is convicted and takes an appeal, and pending that appeal gives bond, why the appeal falls to the ground if he forfeits his bond and gets out of the State. Courts have always refused to hear anybody addressing them from across the border. That is good old rule in the common law, and l do not think that we have reached the point that! it should be abandoned. It is recogni- ton that the powers of the law have been faulty, that we cannot protect persons in the custody of the law. That {s the only excuse that can be given for this innovation. I submit that 1t is a dangerous innovation, and that the Convention should pause before 1t adopts it.
 MT Fitts-The amendment offered by the distinguished gentleman from Mad ison seeks to strike out all of the last nortion of Section 2, seeks to strike out fhese words, But the General Assem- bly may. by general law, provide for a change. of venue for the defendant fin all prosecutions by indictment, and that such change of venue on applica- lion of the defendant, may be heard and determined without the personal nresence of the defendant so applying