The Montgomery advertiser., 1904-01-03
Russell and DriScOll to Go Be-
 fore Judge Winter.
Ey 3Habeas Corpus Proceedings They
 Hope to Return to Vinegar 1ns Bsnd-Thsir Preliminary Hearing Tomorrow.

I0G Wflt9 are ufhUe ERtuFudDie " SuoeS Winter at noon next saturday. when a fight will be made by lawyers fer the al- legged safeblowers who are in the Mont gonncry County jail, for their return to the Vinegar Bend convict camp.
 Meanwhile it is probable Driscoll and Russell will have a preliminary hearing on the warrants charging Them with blew ing open safes in the store of the P, F., Forbes Piano Company on the night or December 8. Their hearing Is set Tor to- morrow at noon before Justice B. H. Screwa
 The writs for Russell and Driscoll were secured from Judge Winter early yester- day afternoon by their lawyer, Terry Richardson. Solicitor s. H. Dent, Jr', said last night that the writs had not been served on him. He said that the pre- iimiraary hearing would take place tomor- row as scheduled.
 Police Chief John Case has been sum .moned to appear before Justice Screws 4 sstomorrow and to bring with him all prop Verty taken from Russell and Driscoli when they were arrested.
 The applications for the writs of ha- beas corpus prepared by the lawyer or the prisoners sets out their contentious, the main point being that they have not been convicted of crime in Alabama and conse- auently the State Convict Board had no authority to order their removal from Vinegar Bend to Montgomery.
 Petition for Writ. :.
 The petitions of Russell and Driseoll are identical except as to the name. Tue petition of Russell is as follows:
 ''state of Alabama. Montgomery county. To theCIIon. John G. Winter. judge of the ' 18th Judicial Circuit of Alabama.
 "Your petitioner J. E. Russell, respect fully represents that he is imprisoned in the county jail of Montgomery coun- ty. held by one w. R. Waller, as sheFih of said county, and the cause Of such detention is warrant and nlittimus issued from the Justice Court of the Hon. B. H. Screws. a justice of the peace in and for said State and county. A copy of said warrant and mittimus are hereto attached and marked exhibit A and made part of this petition.
 "Your petitioner. J. E. Russell. respect fully represents that he Is imprisoned in the county jail of said county. That on the 9th day of December A. D.. lSOS. tyN was arrested in the city of Mobile. Alabama, by Capt. John Case, chief of police of said city; that on said day. upon complaints and warrants sworn out before Hon. Joseph N. McAleer. recor- der of said city. one charging him with carrying pistols concealed about bis per son, and the other charging hun with having in his possession an implement or instrument designed and intended by him to aid in the commission of burglary or larceny in this State. or elsewhere, both misdemeanors; duly certified copies of which complaints and warrants are here tp attached and made part of this pe- kltion. marked Exhibits A and B That (orf the l7th day of December, 1903. he was sduiy arraigned on said charges in the said Recorders Court of said city; that said recorder only having preliminary Jurisdiction of said offenses the defend ant waived examination. to which he had . clear legal right. when his bail was fixed by said recorder as follows: In the concealed weapons cases at one hun nred and fifty dollars, and in the other eases at three hundred dollars. to an- swer in the City Court of Mobile, Ala bama, at it's February term. A. D.. 1904, any indictments that might be preferred by the Grand Jury of Mobile county, growing out of said alleged charges. That afterwards. on the 22nd day of De- 4 eember. 1908. your petition requested that Ae be brought before the Hon. Price Williams, Jr., judge of probate of Mo bile county. Alabama. to be allowed the privilege of electing to perform hard la bor for Mobile county pending the action of the Grand Jury of said county of Mo- bile upon said charges; that he was ac- cordingly allowed by said probate judge to make such election; that he was then turned over to W. H. Holcombe, presi- dent of the Board of Revenue Commis- sioners of said Mobile county. Alabama. who delivered him to John F. Powers, sheriff of said county of Mobile, to be placed in the possession of the lessees of the convict labor of said Mobile county at the Vinegar Bend Lumber Company in Washington county, Alabama; that he was so delivered to said lessees and wac Aperforming such hard labor when. on NSunday. the 36th day of December. 1903 he was taken from the possession of said convict lessees by the sheriff of said county of Montgomery and the chief of police of the city of Montgomery. upon an unlawful order from Dr. Shirley Bragg, physician convict inspector of Al abnma at the said Vinegar Bend Lum- Der Company and then was transported to Montgomery and there lodged in the Montgomery jail. A copy of said order is hereto attached and made exhibit e to this petition.
 A. Has Not Been Convicted.
 Petitioner further ayers that he has <gnever been convicted of any crime in S S'the State of Alabama; that he is simply a prisoner in competent legal custody awaiting trial; that as such, the Ala bama Board of Convict Inspectors has no legal jurisdiction of him; that the order of Dr. Shirley Bragg, physician convict inspector; as aforesaid. was wholly illegal and an unwarranted usur- patton of authority on his part; and that petitioner should be relnanded at once to the custody of the said lessee of Mo- bile county convicts, at said Vinegar Bend Lumber Company. whence he was unlawfully taken.
 Your petitioner ayers that under the laws of Alabama. under and by virtue of an act of the Legislature of Septem. Der 18th. 1903, your petitioner was in the lawful custody of the lessee of convicts for Mobile county, and that his custody by the said W. R. Waller as sheriff of Montgomery county Is unlawful and un. warranted.
 Second. That the order of the said Dr. Shirley Bragg was given by him without authority of law and Is there. fore void.
 Third. That the place of confinement of your petitioner has been exceeded and that he is improperly incarcerated in She Jail of Montgomery instead of the lessee of convicts of Mobile county, Alabama That. though the original Imprisonment was lawful, petitioner has become enti. tied to his discharge by reason of some subsequent act, commission or event.
 Fourth. That the process is void in consequence of some defect in the mat, ter or substance required by law; that