The Birmingham age-herald., 1904-10-13
Case Will b, Appealed to the Supreme Court on
 Writ of Errors
PRISONER DECLARED HE
 WAS NOT FRANK DUNCAN
Was Arraigned Late Yesterday After noon Before Judge Samuel E. Greene of Criminal Court.
 But Few Spectators.

Without tremor In his voice or a move in the muscles of his face Frank Duncan stood before Judge Samuel E. Greene of the criminal court yesterday and heard these solemn words: Tt Is the sentence of the court that you be taken by the sheriff or one of his deputies, on Friday, November il, to a place designated by law and hanged by the neck until dead. And may God have mercy on your soul'
 As the last words of the judge died away there was a slight murmur from the small crowd assembled in the room and then a hush spread over the assem- blaze as if everyone was expecting an- other move. The silence was broken by the judge, who told the sheriff that the prisoner could be removed to jail. Before passing the sentence the court received from Col. w. H. Denson, the de- fendant's attorney, a motion for an ap- peal to the supreme court on a writ of errors.
 Attorneys Plan.
 The paper presented by Duncan's attor- ney in substance sets forth that Dun can is not the Frank Duncan who was convicted of murder and who escaped from jail. It asks that jury be empan- nelled to hear the facts and establish his identity as provided "in the constitu- tion and laws of the state of Alaba- ma and of the fourteenth amendment to the constitution of the United States"
 The plan of procedure evidently decided upon by Colonel Denson In brief is this: : He will go before the supreme court and ask for a writ of error on the record It Is too late to file bill of exceptions or for the supreme court to again open this part of the case. If the petition for writ of error is granted the record of the case will have to be brought be- fore the supreme court as wei, as the petition of the defendant presented to the court yesterday. If an error is found iij this record 1t will then be possible for tho prisoner to get a new trial. If writ of error Is granted the supreme court can suspend the sentence long enough to give the case a hearing Attorneys say it is not within the power of the lower court to suspend the sentence, since the supreme court has already dismissed the appeal.
 Absence of Crowd.
 Duncan did not know until a short while before o'clock that he was to be sem tenced yesterday afternoon. In fact, upon orders of Judge Greene the entire mat ter was kept very quiet. The outside world knew nothing of 1t. The court re porters on the daily newspapers were notified by Judge Greene about noon yes- terday.
 There were hardly fifty people in the court room with the exception of the of- ficials and court attaches. Duncan was brought into the court room at 5:05 o'clock. He wore the new suit of clothes given him immediately upon his arrival in Birmingham, and was handcuffed.
 Chief of Police Wier, Officers Burke, Culpepper, Bodeker, Hamilton, Disheroon and several others were in the court room. Sheriff Burgin, Chief Deputy Strad- ford, Deputies Cole, Hill, Courson Ham, ilton and two or three others brought the prisoner over from the county jail
 Duncan was given a seat in the court room and the handcuffs were removed by Deputy Courson. Colonel Denson followed and about 515 o'clock Judge Greene en- called court to order.
 Court Formalities.
 '1s the solicitor present?" asked the court.
 ''I am replied Solicitor Hefiin, "and if 1t pleases the court, I desire to call att tention to the fact that Frank Duncan Is now in court" The solicitor then re- cited briefly the facts with reference to the conviction of Duncan, of his appeal to the supreme court, of his escape and of his final capture in Florida. He then moved that the court proceed with pass ing sentence upon the man and fixing the date for his execution.
 sYou say the defendant is in court" stid Judge Greene.
 He is"
 "The defendant will stand up," said l.the court. Have you anything to say why sentence should not be passed upon yau."
 Duncan: q have, and my attorney will present the same. Judge Greene: Have you anything to say personally-are you the Frank Duncan that was convicted here for mur- der?"
 Duncan hesitated. He leaned down and consulted his attorney for few sec onds. In clear voice he then declared, 'I am not"
 Solicitor Henin: Does the court recog- nize him?'
 The court: 'I do. But if the solicitor has any evidence to offer, he will now present the same.''
 Sheriff on the Stand.
 Andrew w. Burgin was then sworn and he took the stand. He said that he knew Frank Duncan and that the prisoner be- fore the bar was him without doubt. He said that Duncan recognized him when he saw him at the jail in Florida. .We had conversation" said the sheriff during the course of which he stated that he had been experiencing much trouble since his escape; that my circu- lars had caused him more trouble than anything else.'
 Chief Wier, Detective Bodcker, Chief Deputy Stradford, Officer culpepper and John P. Abbott. deputy clerk of the criminal court. also identified the pris-