The Birmingham age-herald., 1912-06-18
Cahalan Rules Defense Has No Right to Name Spe-
 cial Venire
NOW TRY TO SECURE
 RELEASE ON BAIL
Defense Now Preparing to Argue Case Before Supreme Court to Get Release on Bond Set
 by Judge Nesmith

Holding that the defendant had no right to waive special venire in capital ca.es. Judge Frank Cahalan of the first division of the criminal court yesterday sustained the objection raised by the state. and the case of Henry Cole, charged with the murder of Felix J. Ealard, was passed until reset and will not be tried until this fall
 The case of Henry Cole has been set for trial four times. but has not been reached for various causes At the last setting of the case, on the same week that Teek Duncan was tried, which was the last capital week of the present term. the case was not reached and was again passed. In order to get trial his at torneys agreed to waive the special venire required by law in capital cases and the case was again set for yesterday morning. A
 The morning session was taken up with the organization of the jury. Court Conyenes
 At o'clock the court convened In ad- dition to his attorneys. Messrs. Bowman, Howard & Weaver, the defendant had ANNHihSh AidSil AhOii0W dilu Al. IeQuON to assist in the defense Solicitor H. P. Hefiin, Capt. Frank White and Robert N. Bell represented the state After the list of witnesses for the state was called MT Bell stated that before the state an nounced ready he desired to raise a ques- tion as to the legality of the on-capital jury drawn for the week trying a capital case.
 MT. Bell read an authority on the point of law raised and in his argu- ment contended that the defendant could not legally waive his rights to a special venire and that even if he had that right he had failed to file his waiver at the proper time. and that a trial held under such conditions would be illegal and subject to reversal by the supreme court.
 MT. Morrow Answers
 Mir Morrow replied briefly to the arr gument of counsel for the state, and insisted that the statues had been complied with in every particular and that if the defendant had omitted to properly file his waiver they would consent to the records showing that the waiver was agreed upon by the de- fendant. Judge cahalan held that the defendant could not waive his right at that time.
 MT Bowman vigorously protested against any further continuance and stated that if the judge considered the jury drawn this week incompetent to try the case the defense would agree to a special venire being drawn at once in order to get a trial this week. We think the defendant should have a trial, the state has continued the case four times" concluded MT. Bow man.
 The state is ready to try the case" replied MT Hefiin, but we are seek ing to avoid two trials"
 MT. Morrow asked permission of the court for consultation with the attorneys for the defense, after which they again renewed their motion to ! alive a request for a special venire to be drawn at once. Judge Cahaian overruled the motion and held the objection raised by the state attorneys well taken and passed the case until reset.
 Try to Secure Release
 The attorneys for the defendant will endeavor to secure the release of the defendant on the 5000 bail fixed by Judge Nesmith in the habeas corpus proceedings held a few weeks ago, and from which the state appealed.
 The bill of exceptions to Judge Ne smiths ruling has been filed in the city court, and as soon as the transcript of the docket and other papers are prepared they will present the case to the supreme court for their decision.
 The interest in the Cole case was mani fested by the large number of witnesses. members of the bar, and spectators pres ent yesterday in the criminal court when the case was called.
 The court room and corridors were crowded almost to suffocaton and the keenest interest was taken in the pro- ceedings.
 Present in court was the ,efendant' S wife and daughter and a humber of fe- male relatives.
 The employment of additional counsel for the defense gave the case an added importance and some disappointment was expressed when the case was passed until reset