The Birmingham age-herald., 1904-11-09
Document VIII be Sent to Su-
 preme Court Shortly
TRIBUNAL MEETS NOV. IA
The Case Against Slayer of Officer kirkley Is Reviewed From First Trial Up to Present Time
 By Colonel Denson.

document was written by Col. W. H. Denson, the attorney for Duncan, and 1t will be sent to the supreme court within the next few days
 The supreme court meets on November 14 and 1t is believed that the Duncan case will be taken up immediately by that tribunal. In case the plea which will be sent to the court fails to bring forth results, the petition addressed to the gov ernor of Alabama asking for executive olemency in behalf of Duncan will be forwarded immediately to Montgomery. Duncan has given up hope 1t appears, hours every day reading the bible and he will before the day set for his ex- oeution profess religion 1t is thought.
 The Plea.
 The following is the plea of Duncan to the supreme court.
 In the Supreme Court of Alabama, Mo- Vember term. 1904: ex parte Frank Dun can Petition for an order for writ of error to be directed to the clerk of the Criminal Court of Jefferson county. To the Honorable Supreme Court of Ala bama:
 The petition of Frank Duncan respect fully shows and makes known unto this honorable court that on some day during the fall term, 1901, of the criminal court of Jefferson county, a Frank Duncan was found guilty by jury in said criminal court of murder In the first degree and said jury condemned him to be hung; ard said criminal court pronounced the Judgment of the law on said verdict of said jury and sentenced the said Frank Duncan to be hung, but said court sus- pended the execution of said sentence until the supreme court of the state could review the trial of said Duncan, he hav- ing given notice of an appeal of said case to said supreme court.
 Second; During the pendency of said appeal the said Frank Duncan escaped from the jail and the custody of the sheriff of Jefferson county, and went at large. Said Frank Duncan failing to ap- pear in said supreme court to prosecute his said appeal, the same was dismissed from said court by .l order and judg ment of the same.
 Arrest of Duncan.
 Third: During the month of October, 1904 the sheriff of said county of Jeffer- son brought your petitioner from the state of Florida and confined him In the jail of Jefferson county on October 6, 1904, where he has ever since ben incar- cerated.
 Petitioner ayers while his name is Frank Duncan, yet he is not the Frank Duncan convicted by said jury and con demned to be hung ap aforesaid, but he is another and different man from that Frank Duncan.
 Fourth; On October 12. 1904, by an or der of the court your petitioner was brought into open court to have the judg- ment and sentence of the law pronounced against him. on said verdict of said jury. When said court asked petitioner what he had to say why the sentence of the law should not be pronounced against nim, on said verdict of said jury he responded that he was not the Frank Duncan who was tried in this court and sentenced to death, and demanded that a jury be summoned, empaneled and sworn to try and determine whether petitioner is the same Frank Duncan who was con l victed and condemned to be hung by the verdict of said jury as aforesaid, and who 1 vas sentenced to be hung by said court 1 as aforesaid.
 The court denied said demand and re- quest of this petitioner for said jury trial, and proceeded to take evidence itself to determine the identity of petitioner as being the same man as to matters here in stated. After hearing evidence, the court decided petitioner was the said l Frank Duncan who was convicted and sentenced to be hung as aforesaid. And i thereupon the said court pronounced the | Judgment of the law upon him, and sen i tenced petitioner to be hung on Friday November II, 1904.
 Petition Brought Into Court.
 Fifth: On October 20. 1904, the sait l court had petitioner brought into court l and said court of It's own motion set aside and vacated the sentence of deatf pronounced upon him on October 12. 1904
 And upon petitioner being asked by tn, court if he had anything to say why tn sentence of the law should not be pro nounced upon him. replied That hi name was Frank Duncan, but was no the Frank Duncan heretofore tried, con victed and sentenced to death in sail court, and that he is not the perso mentioned in the record. and demande a jury for the trial of such question.
 The court stated to your petitioner h was entitled to a jury to pass upon tn question of his identity. Jury No c the regular juries empaneled for tn week was then called into the jury box
 Your petitioner thSl asked to continu the case, stating he was not ready fc | trial and wished to procure witnesses prove his defense. The court overrule petitioners motion for a continuance an the question was submitted to said jur, 1 and after hearing the evidence of tn state, the petitioner introducing no ev dence. the jury found the issue in favo of the state.
 The court then asked the petitione if he had anything to say why the sen tence of the law should lot be pronounc ed upon him, petitioner replied: "I an not the Frank Duncan named in tn record" The court then sentenced peti tioner to be executed on the 25th of No vember, 1904.
 Petitioner ayers that upon an inspec tion of the record fin the case manifes error was -intervened, and he assigns th' following as grounds of error apparen on the record in this case.
 Flrst-The criminal court of Jefferson county erred in not summoning specia veniro the same as is allowed and re ouired in the trial of one charged to b' tried on a charge involving capital pun ishment
 Error Charged to Court.
 Second-The said court erred in havinl the question of petitioners identity trie, by the regular panel of juries empanele' for the week. and not by a jury sum rnonsed selected. empaneled and sworl as in cases involving the trial of case wherein capital punishment may be fin 1icted.
 Third-The said court erred fin overrul ing petitioners motion for a continuanc of the case, and dIsallowing petitione time and opportunity to procure witnesse in his behalf. and to prepare for his tria
 Fourth-The said court erred in deny ing to petitioner the right and time t have witnesses summoned to testify i his behalf