The Birmingham age-herald., 1905-10-11
JUDGE OVERRULES DEMURRERS ID PLEA Issue of Former Jeopardy Will
 Go to the Jury THE STRUGGLE HAS BEGUN Jury to Decide If T. J. cornweII Must Be Tried Again on Charge of
 Embezxlement in Bes-
 semer City Court.
THE STRUGGLE HAS BEGUN

Bessemer, October 10-(Special.) )-Just eighteen minutes after the assembling of
 the Bessemer city court, which is en- gagged in the trial of T. J. Cornwell, charged with embezzlement, the three jurors necessary to the completion of the jury begun yesterday were selected and sworn in this morning
 Immediately after the organization of the jury the plea of former jeopardy filed some days ago by the defendant s attorneys was taken up and was still be- fore the court at the time of adjourn ment this afternoon.
 Demurrers to the plea, filed and argued
 by Solicitor Godfrey and Attorney Pink ney Scott, were overruled by Acting
 Judge James Weatherly and the plea
 was allowed to go before the jury to be tried on its merits
 It is expected that the taking of evil dence and the argument of the plea will consume all of tomorrow if not longer. number of witnesses are to be exam ined and considerable documentary evil dence Is to be presented. This after noon was consumed in the reading of the entire transcript of the evidence in the trial of the case in which Cornwell
 was acquitted last winter. The object in presenting this document by the defense Is to show that the testimony in the | lIldl ol tHdI CdSt DIOuSul Oul dii tne evidence covering and dealing with the entire fifteen indictments originally dock eted against the defendant and to fur
 ther show, if possible, that Cornwel has already been acquitted on the eXamina- tion of the testimony that would be pre- scented in the trial of the cases now be- fore the court.
 It is claimed by the attorneys for the defense that Cornwell has already been ri bn cOVertnp t1a list of indictments and the plea Is made that he should be released from the jurisdc- ton of the court and further jeopardy by reason of the charge of embezzle- ment.
 Demurring to the plea of the defense Attorney Scott, for the prosecution, ar gued at length, contending that the plea of former jeopardy filed by the defense was incomplete in that 1t did not go far enough in identifying the charge in the former trial and also that 1t did not fully identify the person charged with the crime.
 Capt. Frank S. White for the defense argued that the charge under the pres ent indictment was identical with that in
 the former case and that the individual
 charged with embezzlement was the
 same The court sustained the point
 raised by the prosecution and the de- fense was allowed to amend the plea So as to state that the $S000 represented as
 having been embedded in the first indict- ment is part of and is included in the s25,O 900 alleged to have been embedded In
 the cause now before the court Demurrers Overruled. The demurrers of the prosecution were then overruled by the court and the
 prosecution filed a replication to the plea
 but after some argument this was with ,l l@ni,,
 some in it's nature and the prosecution
 was allowed to make general denial "in substance and in fact" to the plea of the defense. The replication of the prose- cution eontended that the evidence tend ing to show other acts of embezzlement than that charged in the indictment tried at the former trial was for the
 purpose of showing criminal intent on
 the part of the defendant rather than for the purpose of including them as part of general indictment
 The demurrers being ruled out by the court the plea was put before the jury and the court got down to real business. Capt. Frank S. White, representing the defendant, presented the case to the jury. reading the plea of former jeopardy. The plea set out the fact that T. J. Cornwell was put on trial December, 19, 1904, on the charge of embeZzlement and after fair and impartial trial before a compe- tent judge and jury he was acquitted on December 25. 1904. The plea makes the | claim that in the trial of the case evil dence was introduced and allowed charg- | ing the embeZZlement of something over | $2O0.000 or other sums than those named | in the indictment under consideration. II is claimed in the plea that the solicitor was required to name the amount of | money and the time of its embezzement to be considered In the trial and that he | refused to do so, producing in evidence as above stated, other and all amounts all | legged to have been embedded in the vari- ous indictments. It Is also claimed by
 the plea that the judge charged the jury
 that if 1t was found that any sum more than s25 had been taken fraudulently by
 the defendant at any time during three years prior to the trial they should find
 him guilty of embezzlement. The plea sets up the claim that under the evi- dence allowed in the former trial and
 under the charge of the court that Corn well has already been acquitted on all charges and should be released In presenting the states side of the case Solicitor Godfrey argued that the case to be considered at this time is z distinct case and had no reference what
 ever to the case tried last December Hc argued that the former indictmen charged the embezzement of $8OOO. while
 
 the embezzement of $25, GOO, an entirel, different sum and not included in thu former cause. He argued that this was a separate and distinct offense, and thai the other charges in the former tria were brought out only for the purpose of showing criminal intent on the par of the defendant.
 Judge Explains Issue. At this juncture the judge charged the jury on the purpose of the investigation He explained that the case proper against T. J. Cornwell was not on trial, but thai the proceeding was merely an investiga- tlon into the plea of former jeopardy raised by the defendant.
 Attorney White introduced as evidence
 the former indictment charging the em- bezzelment of $S0OO All the documents
 and orders of the former trial were also
 admitted as evidence.
 Indictment No. 1007, which Is the case
 set for trial at this time. was read to the jury and the court adjourned for dinner
 By consent of the attorneys the jury was
 not kept in confinement, but was allowed to disband for the recess under strict or
 ders of the court against the discussion of the case with others than their num- Der or other Infringement of the usual rules.