The Montgomery advertiser., 1902-01-12

CAPT HUGHES B. KENNEDY. He Was Important Factor in the
 Election of Colonel Higdon. tenant Colonel Kyle during that time. He said he knew nothing of the charac- ter of Lieutenant Colonel Kyle as National Guardsman and notwithstand- ing Kyle was junior commander of his regiment Captain Kennedy swore he had never in his life seen him in the uniform of the National Guard.
 At 12 o'clock Sergeant Lamb of Com- pany A, was recalled by the State. He was asked by the Judge Advocate if Major Parkes was not drinking when he was placed under arrest in Florida. Objection was interposed to the question and the objection was sustained.
 Colonel Higdon was then called. He swore positively that Lieutenant Colonel Kyle did not tell him that he, could not live if he put certain statements on his discharge when he was mustered out of the army service. He also sworc that he did not read the resignation of Lieu tenant Hassor of the Gadsden Company. It was, brought to him and without his reading it was endorsed. He also denied that he had advocated the election of Captain Harrison as Lieutenant Colonel during the last encampment of his regi- ment.
 At 2i5 o'clock Colonel Higdon was excused and it was announced that all testimony was in.
 Time for Argument
 There was 8 discussion between the lawyers as to the time that would be consumed by argument and Judge Ad- vocate announced to the court that he |spreferred to have the testimony trans' cribed before the argument begins.
 The court then recessed until o'clock.
 Afternoon Session
 4. Tila court reassembled at o'clock and the verification of testimony was con tinued. Captain Kennedy, Colonel Hig- don and Captain W. F. Wallace of Decatur were called in the order named and their previous testimony was read to them and signed.
 At 3:35 o'clock Judge Advocate Hub- bard announced that the testimony was concluded, the witnesses were relieved from the rule and were discharged from further attendance upon the court.
 A recess of five minutes was taken by the court and when the officers again filed in and took their seats, Mir. Lomax began his argument of the case. He an nounced in hs opening remarks that the Judge Advocate had waived his right to open the argument. He characterized the trial as the most important in the history of the military of Alabama. A Lieutenant Colonel had been brought here upon a charge of conduct unbecom- ing an officer and gentleman. He was an officer who bore an excellent reputa- ton in the community in which he lived
 Mir. LomaX said five years of his life had been spent as an officer Of the National Guard and he had the highest regard for the soldiers of Alabama. He might, however, he said in the course of his argument. point out wherein the acts regulating the National Guard are in conflict with the Constitution of the State. He theu took Up the unconstitu- t!onality of the provision giving the court the authority to sentence the accused of- flyer to six months in jail and contended that this provision was in clear contra vention of the bill of rights of the Con- stitution giving a defendant the right to a trial by jury.
 Mir. LomaX argued thls phase of the case at some length and read from several authorities to sustain his contention that Lieutenant Colonel Kyle is guaranteed D right to trial by jury under the Con- stitution
 He then took up the charge against Lieutenant Colonel Kyle that he failed to respond to an order from Colonel Hig- don to assist him in the inspection of the 3rd Infantry. By the express pro- visions of the act of 1S9S-99 MT. Lomax said the order of Colonel Higdon was not a lawful order. He contended that the court got it's authority from this act of lS9s-99 and must be guided by the act. He read the provision of the act to show that Colonel Higdon had no authority for issuing such an order, eX- cept when the State Guard was 'In active service He showed that there were express limitations upon the power of commanding officers and that the Colonel of a regiment could not even accept the resignation of an officer except upon autohrity of the Governor. He also showed that the act made it the duty of the Adjutant General and no other officer to visit and inspect the com panes of the National Guard. The speaker gave an exhaustive review of the meaning of the term active service" used in the act to show that Lieutenant Colonel Kyle was not in active service" when he received the inspection order from Colonel Higdon.
 If all of these legal authorities were overruled, MT. LomaX. said that at the time Lieutenant Colonel Kyle was order ed to go on an inspection trip he was engaged as Judge of the Eighth Judicial Circuit In holding court in Decatur and could not be required to desert his duties as judge to go on an inspection trip.
 Letter Purely Personal.
 Coming down to the letter of Lieuten- ant Colonel Kyle to Colonel Higdon, MT. Lomax contended that the letter was purely personal and not official. It was in answer to a letter from Colonel Hig- don in which he usurped his authority. If he was dissatisfied with the actions of Lieutenant Colonel Kyle he should have preferred charges against him and not threatened Lieutenant Colonel Kyle. Mr. Lomax declared that Colonel Higdon usurped his authority and Lieutenant Colonel Kyle had right to write him a personal letetr which he did
 Suppose Kyle had met Higdon per sonally and said you are a coward and no gentleman" said MT. Lomax. Would you say that that was an official com munication?"