The Montgomery advertiser., 1902-04-18
DECISION AFFIRMED
SUPREME COURT DECIDES THl
 JACoDI CASE.
Opinion in Part Handed Down by Chief Justice Mcclellan. May Be Carried
 Higher.

In an opinion by Mr. Chief Justice Me- CleIlan, the Alabama Supreme, Court
 yesterday affirmed the decision of the
 Montgomery City Court convicttng san
 ford Jacobi of Montgomery of an at
 tempted assault upon Miss Lizzie Parker,
 formerly of Clanton, and sentencing him
 to a term of years in the penitentisry.
 The crime of which Jacobi was con
 victed is familiar to readers of The Ad-
 vertiser It occurred June 24. 1900. In
 November of the same year he was given
 a trial in the Montgomery City Court.
 which resulted in a mistrial. At the lasl
 November. term of the City Court the
 second trial was held and Jacobi was
 convicted. Miss Parker in the meantime
 had removed with her widowed mother to
 Buena Vista, Ga, and was not present
 at the trial. Every effort was made to
 reach her with subpoena, but without
 effect
 When the second trial was in progress
 the State introduced William Micou. who
 had been -a juror at the first trial as
 witness to testify ssNo the substance of
 the former testimony of Miss Parker. At
 torneys for the defendant stoutly resist
 ed this character of testimony, but was
 overruled by Judge w. H. Thomas on the ground that there was evidence to show that Miss Parker was beyond the Jurisdiction of the court.
 The defendant excepted to this ruling and the appeal to the Supreme Court rest cd largely on this contention of error. In the first paragraph of his opinion. Mir. Chief Justice Mcclellan disposes of this phase of tho case as follows: Opinion of Court.
 "Upon full and exhaustive considera- l ton of the question on principle and au- | thority. this court, in Lowe vs. The State, | ftaf ha of a witness l former trial or prosecution of the de. fendant for the same offense. Is admissi- ble as evidence against him on a second trial, if the witness Is beyond the juris' diction of the court. whether he has re- l moved from the State permanently or for an indefinite time or, to state the ruling perhaps more accurately, that when the l witness has removed from the State per- manently or for an indefinite time, his
 testimony on any former trial of the de- fendant for the same offense may. be giv- en fin evidence against the defendant on any subsequent trial tS6 Alabama. D. This decision has been often followed and reaffirmed by this court We are entirely satisfied of it's soundness; and we now again follow and reafirm it."
 The opinion then goes at length into the matter of the absence from the State of Miss Parker at the time of the second | trial and her consequent absence from the jurisdiction of the court from which it is concluded that she was permanently or indefinitely absent from the State at | the time of the trial below. and that the 1 City Court properly admitted evidence of her testimony on the former trial The opinion touches upon the exception | to the testimony to the effect that Miss | Parker had said she had rather die than | to come back to another trial and go | through the same ordeal" and 1t is de- | clared by the court that the exception is not tenable.
 The opinion of Mir. Chief Justice Me 1 Clellan concludes by the statement that
 charges were very properly refused " | Judge Thomas of the City Court to which Jacobi's lawyers had reserved exceptions
 and that We find no error in this record
 and the judgment of the City Court must
 be affirmed.''
 May Be Carried Higher. | Jacobi was represented before the State l Supreme. Court by Judge John NJ. Chil-
 ton of Montgomery and Judge Henry l..
 Lazsrus of New Orleans Asked by a | representative of The Advertiser if the case would be appealed to the Uni ed States Supreme Court on it's constitutional merits, Judge Chiffon said yesterday afternoon that he was not prepcrad to | say until he had discussed the matter | with his associate. Judge Lazarus. It was learned, however. that there is | probability the United States Supreme Court will he asked for a writ of error | in the case In order to file an appeal on l the ground that Jacobi was not granted the right to be confronted with his accu- ser. guaranteed him by the Federal Con
 stitution. An appeal only lies from the ! State Supreme Court to the Federal | Supreme Court in criminal cases when there is contention as to infringement upon the Federal Constitution. If the l Jacobi case is appealed to the United States Supreme Court it will be the first | case so appealed from the Alabama | Supreme Court in a great many years l In the meantime Jacob is in the Mont gomcry County jail. The St1te Convict | Department had not been officially ai- vised m to late yesterday afternoon of the affirmation of the Jacobi case Judge | Carmichael. President of the Convict Board said that he had not determined d whtr re Jacobi would be sent. He added | that owing to the fact that the Mont | gomery jail has recently been infected with smallpox he would probably hay, Jacobi quarantined at the farm of Sheriff Waller a reasonable length of time be- | fore sending him to any of tn. convict camps.