The Montgomery advertiser., 1904-09-20
TO RELIEVE SOLDIERS
GOVERNOR SENDS DETACHMENT
 TO HUNTSVILLE,
Confers With Captain Brown Over Telephone and Finds situation Satisfactory Law Under Which Captain Hay Might
 Have Acted.

A detachment of fifteen men will b,
 sent today from Birmingham to Hunts
 vlilc tc serve as a part of the troop. there. which are under the comma nd or Capt. Lucien c. Brown, and are \ guarding the jail while the trial of the
 alleged lynchers of Horace Naples. q
 negro, is in progress. These men will take the places of the
 men who went to Huntsville with Cap
 tain Brown, but who are forced to re-
 turn to Birmingham and take up their | work The Huntsville military force
 will not be increased. nor will 1t be de | creased for the present.
 Captain Brown requested that the new men be sent to him in a confer ence which he had over the telephone with Governor Cunningham late yester. day afternoon. He reported to the Gov ernor that the situation at Huntsville was satisfactory.
 A few minutes later the Governor called up Major John D. Elliott in Bir-
 mingham and instructed him to get the
 men ready and have them sent to
 Huntsville today.
 The part that the Huntsville mili-
 tary company played. or failed to play,
 in the recent lynching, has at least
 cleared away popular error, an error
 in which Capt. R. l.. Hay of the Hunts ville company, allowed himself to fall. It has drawn attention to the fact that the law does not declare that a mili- tary officer. in command of a company. shall be absolutely under the comma nd of sherin. whether he orders out the military or whether the order comes from the Governor. On the contrary. the law gives the comma nding officer or force of military under such cir cumstances wide discretion.
 While the sheriff may order the mili- tary to do certain thing the officer in command has the right to decide how and in what way he will do it. The sherin may tell the commanding officer to protect a prisoner. but the officer may adopt his own r1eans ce protecting the prisoners. even to the extent of go- ing counter to the sheriff's views.
 This provision of the law is said to be fatal to the defence which Captain Hay will enter before the court of in- quiry, which is investigating his con- duct at Huntsville.
 Captain Hay has announced that he was sent to assist the sheriff by tele- gram from the Governors office and that the telegram directed him to re- port to the sheriff. Captain Hay holds, therefore. that as he obeyed the orders of the sheriff he was In no wise cul- pablo. The law. however. gave him discretion by which even If he had to run counter to the sheriff he could have protected the prisoner and pre- served the prestige of his command
 The section of the code in question was written by and inserted through the efforts of exGovernor Jones. Gov ernor Jones has had more experience with mobs and military than any other | man in the State. The section of the | code was a result of his wide experi- l ence. He realized that under some con- | ditions the sheriff might be loath to l use every means at his command to | thwart mob. In such an occasion the | officer should have power 10 | act independently and on his own indi- | Captain Hay was either un- aware of this or he failed to avail him. self of the powers given him by the | law. He only claims that he followed the instructions of the sheriff in the fiasco.
 The provisions of the code bearing upon the question are as follows:
 "5l90. When commanding officer may order troops to quell riot.-If any portion of the militia or State troops, or persons lawfully aiding them fin the performance of any duty under the pro. visions of this article, are assaulted, at lacked. or in imminent danger thereof he commanding officer of such militia ,r State troops need not await any or iers from any civil magistrate, but may 1t once proceed to quell such attack, Ind take all other needful steps for the afety of his command
 '5192. Power of civil or military of- icer to clear streets, etc.--Whenever my rout, riot. or mob has occurred, or s progressing, or Is so imminent that ny portion of the militia or State roops is, or has been called out tor he performance of any duty under the rovisions of this article, it shall be awful for the civil officer under whose rders the militia or State forces are cting or the commanding officer of | uch militia or State troops, If 1t be | eemed advisable in subduing or pre- enting such mob or riot, or the out Ii