The Montgomery advertiser., 1909-06-04

Gleason. SO Towards Pr. IN. 70 1z7-
Neglect means omission or forbearance
to do thing that can be done or that
Is required 20 be done. Is Am and
Eng. Ency. Law. 3s5 and note 2. There
must not only be failure by careless
ness or design to perform the duty re-
quired to be performed but the party
must have the capacity to perform the
acts required OF him. provided the in
capacity IL not supertnduced by bis
fault or the result OF his own miscon-
duct. Here we have q clear definition
of Official neglect. as defined by our
own court and which must have been
put In Section 1ss OF the Constitution
with the meaning and Interpretation
given 1t. In as much as there was no
EFFORT to define IL otherwise by the In
strument itself.
Misconduct Not Designed
II do not understand the majority of
the court to hold. that the respondents
misconduct was designed, but they
seem to go upon the idea. that his fail-
ure to resort to preventive measures
was such careless act as to render
him guilty of such neglect as Is con-
templated by Section 1913 OF the Con-
stitution. First. that the very nature
OF the crime. the popularity Of the de-
ceased. etc. was calculated to make
prudent man apprehensdve that an at
tempt would be made to lynch the
prisoner Robertson: and, second, tnat
James H. Webb had warned him to ex-
pect an attempt to lynch the prisoner.
Under the proof in the case the hrst
proposition must fall. The undisputed
evidence shows, that from the time OF
the shooting of Fatch and up to the
very hour of the lynching, there was
no excitement, no congregation OF the
populace and that the town was In Its
usual orderly and normal condition
Witnesses who had passed over every
thoroughfare and byway, who visited
nearly every popular place OF business,
testified without contradiction, that
there was nothing to indicate from the
conduct and manner Of the public, that
any violence would be attempted on
the prisoner. These witnesses are
fully sustained by the fact, that the
jail was not attacked; there was no
mob. and the prisoner was slain by
not exceeding a dozen midnight assas-
sins who approached the jail stealth
lily and by twos and fours. Again, this
respondent had encountered previous
lynchings, and preceding thems the
town was wild with excitement, the
streets were paraded and indignation
meetings were held. Compare the two
and 1t will be found that the respond
ent's past experience gave him every
assurance that the conduct OF the pub
lie on this occasion gave every indica-
ton that there would be no attempt 10
do violence to his prisoner. True,
there were witnesses who heard ru-
mors of a probable lynching, that he
ought be lynched, ETC.. yet most OF
them admitted that they attached but
little importance to said rumors. Ihey
had been in the city on former occa-
sions, knew the temper OF the people
then, and compared 1t with the then
-.
Not a single witness who heard SAID
rumors attached enough Importance 10
them to report to the sheriff, the mayor
or chief of police, but this respondent
must he charseabIe with rumors and
conditions. not deemed serious py
single man, save James H. Wepp' VINO
only communicated his opinion 10 the
sheriff incidentally.
Defendant Was warned.
THAT Mr.. Webb warned the De
PENDANT. there can be no doubt, Whetn-
er or not respondent heard him. there
is very serious doubt. Mr.. Webb tolo
him in the presence of Judge Ai1oro'
that Mrs. Hodgson, or the negro "o-
man had overheard q man say there
was going to be lynching. When Mr:
Webb told this respondent what ne
had heard. Judge Afford and the re-
spondent both expressed no rear, EVIL
IDENTIFY based on the then serene and |
quiet condition of the city, and Mr.. |
Webb did not then take Issue with |
them, but merely remarked to re-
spondent when they left 1idge AFFORDS
office. that they were going to lynch |
that negro "asl sure, as gun Is iron"
Did the respondent hear him? His hear
ing is not good and he says he did not
or did not remember Mr.. Webb did |
not say that he did not hear him and
they parted after this remark.
"Conceding. however, that the re-
spondent heard Jas. H. Webb. was 1t
any more than his mere opinion. based
solely upon what his client or Mrs.
Hodgson told him? On, the other hand, |
Judge Afford, equally as familiar with
conditions as Mr.. Webb, expressed |
different opinion and the respondent |
entertained similar views. Mr.. Webb's |
opinion was a mere conjecture and the |
opinion of Judge Afford was based |
upon existing and terrifying condi-
lions. Again, not a single person, 9TH |
err than Mr.. Webb. ever gave the re- |
spondent the slightest warning, and It |
looks unreasonable that II there YVES |
any foundation of "a lynching in the |
air. that It would have sufficiently at |
tracted the notice of some conserva-
tive and law abiding citizen to the ex-
tent of causing him to impart his in |
formation to the sheriff. the mayor or
chiezSof police. Conceding. however, |
that this RESPONDENT was chargeable |
with notice, that an attempt would be |
made to get his prisoner. what else |
could he have done? The majority con-
cede that conditions were not such as
to call for the military or an armed
guard to surround the Jail. but seem TO
charge his whole dereliction Of duty,
to the fact that he did not instruct his,4
grauds to close the wooden doors and |
the second steel door to the guard /
room 1t was utterly impracticable to
have closed the wooden doors as 9TH
err deputies were coming in with |
prisoners at all hours of the night Had |
they been closed one of the guards |
would have to open them and would /
put himself more accessible to would |
be intrudefs than he was by remaining |
in the guard room. AS to the other |
steel door, its being shut would not |
nave removed the guards from the |
reach of the men who covered them. |
On the other hand with both doors of |
the cage closed, they would have been
at disadvantage as to egress in de-
tending entrances or attacks in other |
parts OF the building. Had they look |
ed themselves so that IT would have |
taken them too long to get out and |
an attack had been made elsewhere, |
II might be said that the sheriff was |
guilty Of neglect for not Instructing |
them TO keep the doors open so as to |
have ready access to other parts of |
the building. The jail was impreg- |
nable to a forcible attack as the State |
oro1ad kbIS 70 THE