The Montgomery advertiser., 1901-07-07

he has no reason to be present to tes- tify at which there is no reason or necessity for fiik presence that the ap- plication can be presented in open court without bringing him out of jail and incurring the chance of his being seized and taken from the officers of the law and without mourning the necessary expense to send a military company there to guard him on his first appear ance in the court house. while this cr- der is being tmade.
 MT. Weatheriy lJefferson)-Wiil the gentleman permit a suggestion.
 The President-Will the gentleman permit an interruption.
 Mir. Fitts-CeEtainly.
 Mir. Weatherly-Would there be any objection to amending ,he Section something like this; Provided, such application shall not be heard or de- termined where the defendant in whose behalf the application Is made is a fugitive, or is not in custody of the law.
 MT. Fitts-I would have no objection as a member of the Committee. but 1t is not necessary. It simply provides when one of those crimes have been committed which excites people. which disturbs the quiet of the community, "hASh Sth Q bAiChA dkS Ahot yoN hSSo hOe carry that man in person to the court house. but that he Can make his appli- cation for a change of venue through his authorized attorneys and have it heard and determined by the court without his personal attendance in the court house. This is common sense proposition. What is our experience and observation in this State, in this Southland? When is it, and what time is it. in the progress of criminal agita- tion that men are seized and taken out of the hands of the officers of the law? The time is always immediately after he Is first arrested. either while the sheriff is getting his prisoner to the jail, and if not at that time al- most always at the time when carried out of the jail to petition for some such order as this.
 MT. Walker-win you permit me to make a suggestion?
 MT. Fitts-Certainly. sir.
 MT. Walker--Wouldn't it be entirely within the power of a defendant when he has given bond to make this appli- cation from New York or anywhere else?
 Mir. Fitts-well. if he had obtained bond. then there would certainly be no objection to his making 1t from New
 
 the bond that is looked to to have him returned to the court house f0r trial
 MT. Coleman (Greene)-May I ask a question.
 Mir. Fitts-Certainly, Judge.
 MT. Coleman-I prNpose to offer the following amendment.
 The Secretary read the amendment as follows: Amend Section by adding thereto. the following words: Provid- ed. that at the time of the application for change of venue the defendant is imprisoned in jail or some legal place of confinement"
 mittee. would have no earthly objec- tion to that. though think 1t is suffi- ciently covered as it is.
 MT. Lomax-If the gentleman from Tuscaloosa will permit me. while I do not see any necessity in the world for those words. on behalf of the Com mittee. am willing to accept them. believe. following the case of Warwick vs. The State, any court would refuse to hear an application from a defen- dant who Is a fugitive. The Supreme Court did in that case; but I am per- fectly willing to accept that.
 The President-The Chairman of the Committee asks unanimous consent to
 
 tleman from Greene.
 MT. Wilker-I withdraw my amend ment.
 The President-The gentleman from Madison asks unanimous consent to withdraw the amendment offered by him. The Chair hears no objection to the withdrawal by the gentleman from Madison of the amendment proposed by him, and to the acceptance by the Committee of the amendment proposed by the gentleman from Greene, and 1t is so ordered.
 MT. Waddell-I have an amendment.
 The Clerk read the amendment as follows: Amend Section by adding on the fifth line after the word do" the following words, And the wife or the husband may be allowed to testify for or against each other where the charge is infanticide."
 MT. Fitts-I make the point of order. that that amendment is not germane to the pending amendment which has been accepted by the committee and has rot yet been put to the house, and covers an entirely different subject.
 The President-It has been absorbed into the section by unanimous consent of the Convention. l overrule the point of order. The gentleman from Russell has the floor.
 MT. Waddell-There were two cases in Russell County that have gone un- whipped of justice, because the wife could not testify against the husband. In one case, where the mother stood and saw her child's brains beaten out before here eyes, and the law would not allow her to give evidence in the case. The man was convicted on circumstan- stantial evidence and sent to the peni- tentiary for ten years. but he ought to have been hanged.
 Mr. Foster-May I ask the gentle man question:
 MT. Waddell-Yes, sir.
 Mir. Foster-Ins't it within the legis- lative power to enact laws to that ef- fectI
 MT. Waddell-I think not
 MT. Lomax-Mr. President, I think it is clearly within the domain of legis- lation rather than Constitutional en- actment, consequently 1 move to lay the amendment of the gentleman from Russell upon the table.
 A vote being taken viva voce, the was tabled.
 MT. Lomax-I move the adoption of the section, as amended, and on that call for the previous question. The previous question was ordered by a vote of the Convention and the question then recurred on the adoption of the section as amended, and the section was adopted. The clerk here read Section 8: That no person shall be accused or arrested, ed by law, and according to the form which the same has prescribed; and no persons shall be punished, but by virtue of a law established and pro-