The Birmingham age-herald., 1907-09-19

The defendant not in confinement, having been rele9d in a habeas corpus proceeding held bpre Justice l. H. Ben | ners. His bond ts fixed In the sum of | $12,0O0
 Yesterday mornlg the jury to try Haynes was orga ted, and the taking of testimony was b@un immediately after ! the dinner recess. Solicitor Hefiin is con 1 ducting the prosedtion and Judge B. M Allen and Judge al Gaston represent the defendant.
 Motion to auash Venire. Before the trial sas begun the defense made d motion toeuash the jury venire | it being contendee among other things l that the present tenire was drawn be- l fore the new law 9vernng the same was 1 in effect. This lotion Judge Weaver 1 overruled, and the defense filed an excep- l ton. The jury tring Haynes is as fol- | lows
 J. l.. Pike, conractor; James White, milling; Jamed Cox, farmer; George | Carnes, farmer; wis. McCombs, farmer; George Harrison, eerk; J. D. Adams. blacksmith; John B'own, farmer; J. T. Tyler. farmer; Richmond Riley, farmer; Charlie Goodgaine, sreet car conductor; Orland Finch. advertising solicitor.
 There was considerable interest cen tered in the trial. ant throughout the day the room was we'll filed. On account of the noise, and the subsequent inability to distinctly hear, Judge Weaver stopped street car traffic on Twenty-first street
 Judging from the iapidity with which the trial is progressing both sides believe that the case will be in the hands of the jury by Friday at noon, if not sooner.
 The defense is attempting to prove that while Hewlett was in the Peerless saloon Haynes entered without knowledge that the deceasd had preceded him; that Hew- lett, after addressing Haynes, virtually | warned him to prepare for a duel. and drawing his weapon, nred twice before the defendant had time to draw.
 The state, on the other hand. is endeav- bring to adduce testimony indicating that the deceased and the defendant had, pre- vious to the recountre, difficulty; that on the afternoon of the tragedy Haynes, heavily armed. hunted for Hewlett, and found him in an intoxicated condition in the Peerless saloon and that after Hew- lett had emptied his own revolver, he at tempted to leave the scene and was shot in the rear of the head.
 The preponderance of testimony yester- day pointed to the probability of the a- legation being true that Hewlett did be- gin the duel. and that he had fired twice when Haynes drew his weapon
 Judge Allen informed the jury that the defense did not deny having killed Hew- lett, and stated that the claim on ais side was self-defense.
 Tice Is States First Witness. Tice, who managed the Peerless saloon at the time of the agedy. The witness es- tiled that Hewlett had preceded Haynes l in the saloon. and that the deceased was talking to some friends, among them be- ing John T. Shugart. He testified that when Hewlett saw Haynes he cried Hello, Harry and that Haynes replied | Hello, Tom, I'm all right" The witness | then stated that Hewlett asked Haynes 1 if he had his xshooter and being in formed that Haynes was armed cried You'd better use 1t then.' The witness declared that the shooting immediately 1 followed. though he. from the floor be hind the counter, whereon he had cas himself. could not tell who fired the frs shots.
 Being closely questioned by the solicitor 1 the witness admitted his belief tha Haynes did say immediately after tn, death of Hewlett: 'I guess that will holt you for a while, Tom"
 The witness saw Hewlett after tn, rencontre, and testified that there wer, two wounds in his head one from tn, rear and the other under the left eye He would not commit himself to th statement that the ball entered th rear of the head, nor would he swea that all of Hewletts three wounds were inflicted from the rear.
 On cross examination. Tice swor that while he could not positivel, state who fired the first shots thu | firing came from the territory wher Hewlett stood He swore, too, tha Hewlett was drink ing, but that Hayne was not drunk
 Dr. B. s. Wyman. who examined tn ] body of Hewlett after his death wa the states next witness. He testife to the effect that the bullets enterin, Hewlett's foot and knee were of small CT calibre than the ball which pene trated his head, the one producin, death. He gave it as his opinion tha the bullet which killed Hewlett en tered the rear of the head and mad its logged exit under the left eye
 On cross-examination, Dr. Wyma1 testified that the death wound coul have been inflicted while the decease was partially turned from the ma sh ooting at him, and while his whol back was not turned.
 After the examination of Dr. Wy man, the state rested.
 Hester Garner for Defense.
 Hester Garner was the first witnes for the defense. He testified that h was with Mir Hewlett before Hayne entered. and that they had taken sev eral drinks together. He testified tha when Haynes entered through tn front, he paid no attention whateve