The Montgomery advertiser., 1902-01-03
Continued from Page one.)
a great deal of time.

a great deal of time.
 Mir. Lomax filed formal plea of lack
 jurisdiction which he read to the court.
 It set forth that at the time of the com
 mission of the alleged offense Lieutenant
 Colonel Kyle was not in the active ser-
 vice of the National Guard and therefore
 the cause should be abated and dismis.
 ed except as to failure to attend the
 annual encampment
 The Judge Advocate moved to strike
 the pleas from the record on the ground
 that they were not replies to the specii-
 cations contained in the charge against
 Lieutenant Colonel Kyle. The gist of
 the pleading he said was that at the
 time of the correspondence neither of
 the officers were in the active service of
 the State. The specifications he de-
 clared showed indispdtably that Colonel
 Higdon was acting in the line of his
 duty aS an officer of the National Guard
 when he issued orders to Lieutenant
 Colonel Kyle. He said that the State held that when an officer of the National Guard takes an oath to serve a term he swears to obey his superior ofhcers without reference to any particular duty. h. replying to Lieutenant Colonel Hub- bard Mir. Lomax said that if the plead- ing wa sadmitted the work of the court would be greatly simplified. It would raise merely the question of the failure of Lieutenant Colonel Kyle to attend the annual encampment of the 3rd Infantry. He contended that under the statutes regulating the State Guard the officers were not in actual service when the | letters were written and Lieutenant Colonel Kyle was not guilty of breach | of military discipline.
 Legal Points Involved. l General Oates also addressed the court upon the legal points involved. He | covered violations of the statutes regu- | lating the State Guard and violations of l the Articles of War, contending that it | was competent for the court to hear 6 case based upon violation of the statutes, | but not one which was in violation of the | Articles of War. He also spoke of the | limited Jurisdiction of courtmartial and | declared that the court must find au- | thority for it's action in the statutes. He made the important declaration that the National Guard was not in active service until 1t was so ordered by the Governor who is it's commanders He said that if the law did not make it the duty of Lieutenant Colonel Kyle to heed the order of Colonel Higdon to accompany him on an inspection tour of the State the court could not deal with him for his failure to heed the order. Did Colonel Higdon have the right by means of letter to arraign his Lieu tenant Colonel for disobedience?" asked General Oates. "The question presented here is did the failure of Colonel Kyle to answer letters vest Colonel Higdon with authority to write to Colonel Kyle, suggesting his resignation. His remedy was to bring the matter before a court | martial. If there is no law to authorize | Colonel Higdon to write such letters this court should not stultify itself by as- suming jurisdiction in this case" He admitted the charge of failure of | Lieutenant Colonel Kyle to attend the encampment might be well made, and if the proof showed no sufficient excuse to | the court he might be amenable to pun
 ishment on that count.
 The Judge Advocate reRlied to the | various propositions of law submitted by counsel for Lieutenant Colonel Kyle and | at 2 o'clock Colonel duMont announced | that the court would recess until 3:S0 | o'clock.
 Question of Jurisdiction. Soon after the court reconvened Colo mel duMont announced that the plea of | lack of jurisdiction was overruled and that the motion of the Judge Advocate was sustained. Colonel duMont said: "The court sustains the motion of the Judge Advocate to strike the pleas with
 leave to the accused to introduce fin
 evidence under the plea of not guilty all matters relating to said plea."
 General Oates announced that the de- | fendant would file formal plea of not guilty and an answer to the charges.
 After a short conference between the l lawyers. MT. lLomax read the answer of Lieutenant Kyle which Is published here | with. It contends that the act under which the courtmartial is proceeding is | unconstitutional and this is believed to