The age-herald., 1901-05-26
FULLT TEXT SUPREME COURT DECISION
 IN CELEBRATED FRANK MILLER CASE

uS AB6-1eIdlu lOQdy Illl text of the Supreme Court decision in the celebrated Frank Miller case
 Frank Miller was indicted and tried for the murder of Policeman Kirkley, who was shot on the streets of Birmingham some months ago. Miller was found
 guilty of murder in the first degree and given the death sentence. Frank Dun can was a co-defendant, being jointly indicted with Miller and was found guilty
 and sentenced to imprisonment for life
 An appeal was taken to the Supreme
 Court and the decision of the lower court was affirmed. Following is the de-
 cision in full:
 The Supreme Court of Alabama. Novem-
 Der term 19OO Frank Miller ct el. vs.
 the State of Alabama. Appeal from
 Jefferson Criminal Court.
 Mcclellan, C. J.-"When two or more defendants are jointly indicted. they
 may be tried either jointly or separately as either may elect."-Code 5275. Where
 two or more persons charged with a capital offense, are jointly indicted,
 either of them is entitled to demand a
 severance; but such right shall be con-
 sidered as waived unless claimed at or
 before the time of arraignment, or, at
 latest, when the court, at any term, sets
 a day for the trial of the case and
 makes an order to summon a special
 venire In other than capital offenses,
 a severance may be demanded at any time before the case regularly goes to the jury "-Rule 32, Code pp. POOL. This
 rule is in no sense violative of the stat
 ute. It does not defeat or encroach upon the right given by the statute, but Is
 merely supplementary and compliment tary thereto in providing when that
 right must be claimed the provision be-
 ing necessary to the prompt and orderly
 course of justice and leaving all de- fendants In all cases abundant opportu- nity to avail themselves of the right the
 statute gives them. The indictment in the case at bar charges a capital of- fense, and falls under the first clause
 of the rule. By not availing themselves of the opportunity they had to demand a severance at or before the time of the order made setting a day for the trial and for a special venire, they waived their right; and the court com mitted no error in overruling and deny ing the motion for severance made by defendant Miller on the day set for the trial of the case.
 pr. Wheelan's testimony as to the course of the bullet which killed Kirkley was relevant and material, though this indictment is for the murder of Adams. It went to support the theory Of the State. and to corroborate other evidence adduced by the prosecution that each of the defendants participated In the killing of the officers with common in tent to rid themselves of their captors. There was a question of the indentity of the defendants with the men whom the officers had In charge, and who, af- ter apparently submitting to arrest sud- denly set upon Adams and Kirkley and Aa fn IlH1rafa n continued throughout the trial, his de-
 fense being an alibi. Miller took the
 stand being the last witness examined
 for the defense, and admitted his identi- ty, but denied participating in the kill ing But doubtless he was driven to this admission by the strong evidence introduced by the State going to show
 that he was one of the men arrested
 by the officers and participating in the
 homieides. So that it is not inapt to
 say that the issue of identity as to each of the defendants was a material and prominent issue throughout the introduce tion of testimony in chief by the prose- cution. Both the defendants were | strangers in Birmingham, the scene of the murders. They came there a day or two before the homicides. They left as
 soon after as possible. Miller was cap-
 tured in Annston in the course of his
 flight Duncan was captured in Chatta- nooga. Duncan denied through out that he was in Birmingham at all. Miller was in the attitude of the same denial until he went on the stand, so far as the record shows. The testimony
 of eye witnesses of the shooting tended
 to identify the defendants as the guilty
 parties, but the shooting was at night and the identification was not positive
 or certain. Miller was brought before
 Adams, and it was In evidence as part
 of his dying declarations that Miller was
 the man who shot him, but there was
 evidence tending to impeach the accu-
 racy of his declaration in this regard;
 and besides this declaration had no ref
 erence to the other defendant Hence
 if may be said to have been in a sense
 necessary for the State to offer addition
 al evidence of Identification. But wheth-
 CT necessary or not, it was of course competent for the State to do so To this end it is plain that the testimony of Smith tending to show that on the
 afternoon before the night of the kill ing these defendants were in Birmng- ham that he then saw and talked with them on the outskirts of the city, and, in connection with other testimony to be presently adverted to, that this was In the neighborhood of the Standard Oil Companvs office, and that one or them asked him whether the police came out that far. was properly received In evi- dence And Merida Wilson's testimony was properly admitted in corroboration of Smiths. So too, the testimony or Frank Brown that on the morning of the day before the shooting he rented
 a room for week to party of six or