The Montgomery advertiser., 1904-11-16
PRAYER FOR DUNCAN
PETITION FOR WRIT OF ERROR
 FILED WITH SUPREME COURT.
Last Effort to Save Slayer of Birm- ingham Policeman from the GaIIows-New Points Raised
 by Lawyer.

coIonel W. H. Denson of Birming- ham. counsel for Frank Duncan, the noted robber and safe-blower, who IFS sentenced to be hanged November 20 in Birmingham for the murder ol Policeman William Kirkley, LOOK the last step yesterday toward saving tne life of his client by filing with the Supreme Court, petition TOT "rit of error. ,-,u
 The prayer of Duncan, through his attorney. is that the Supreme Court cause a writ of error to be directed to the Criminal Court of Jefferson Couh- tv and that his execution be stayed.
 The course of Colonel Denson Is a distinct divergence from newspaper re- mort of his tactics in that the petitloh- CT admits by implication that the oe- fendant is the same Frank Duncan Who was convicted in September 2O, lVo1 ol the murder of Policeman kirkley' The petition sets out that Duncan, the peu- tioner was sentenced to be hanged December 6, 1901, but escaped from the Jefferson County jail while an appear by bill of exceptions was pending pe- fore the Supreme Court. The appeal was set aside. l.,
 The petitioner was apprehended in the early part of October 1904 near et. Augustine, Fla, and was delivered 10 Sheriff Burgin, of Jefferson County on October 6. On October 12 Duncan was resentenced to be hanged. the date or the execution being set for November 1I The court then and there, of its own motion, set aside and vacated the sentence of death pronounced by said court on October 12 and pronounced the following judgment and sentence on the defendant: Tt is, therefore, the sentence of the law that the said de- fendant the said Frank Duncan, De taken from the county jail on Friday, November 25, by the sheriff of the county and at a place appointed by law that he be hanged by the neck until dead.
 Thus was Duncan sentenced to death three times, a rare occurrence for any criminal The first sentence was void by expiration while the fugitive was at large. The second sentence was passed also by Judge Samuel E. Greene. of the criminal court, after a brief trial without jury of the prisoner on the question of his identity, Duncan pleading that he was not the same Frank Duncan who was convicted in 1901. This sentence was vacated on October 20 by Judge Green who de- cided to remedy a possible error in refusing Duncan jury on the issue of his identity and so ordered him to be taken before the court. This was done on october II. jury being drawn from the regular venire of that week of the nourt. Then followed the third sen tence to death on the verdict of the surv which found for the State. The date of the execution was set for November 25.
 Instead of petitioning for a writ of error on grounds relating to the re- sentences, as was commonly thought by most persons interested in the case, Attorney Denson yesterday submitted averments claiming errors apparent on inc record of the case from the very beginning in 1901 until the time of the resentences.
 Chief among these assignments of error are:
 First-That the court erred in not drawing the juries which tried the sase as required by law for such pur- poses.
 second-That the record nowhere shows that the defendant was present In the court when the jury came in with the verdict.
 Third-The record nowhere shows that the verdict was returned into open eourt or received by the judge and in The presence of the defendant
 Fourth-The judgment of the court IoaH not refer to the verdict of the