The Birmingham age-herald., 1921-04-09
HIGH COURT TAXES BAIRD MOB TRIALS
 UNDER ADVISEMENT
Counsel Resisting Effort to sHave Notorious Lynching Cases Tried In Marion ln-
 SiSt AUpon Walker
By FpRED H. GORMLEY Montgomery Bureau. The Age-Herald 22f-2 First National Bank Bailding


 Montgom cry. April S.--(Special)- Arguments were concluded before the supreme court Friday afternoon on the petition ofeSergt. Robert J. Lancaster
 and the other national guardsmen
 charged with the lynching of William
 Baird in Walker county for a writ of prohibition preventing their arraign-
 ment and trial in any county except
 Marion ito which their cases were sent
 on change of venue. The supreme
 court took the petition under advise
 ment,. In view of the fact that the
 casefis on the list of preferred ones, l it is probable the court will render
 decision within two weeks.
 Judge Horace c. Wilkinson, special lhssistant attorney general completed tition when court reconvened Friday
 morning. He was followed by W. c.
 Davis. prosecuting attorney employed l by the Baird family, who opposed the petition. J. Manley Foster of. Tusca- loosa closed the case with an. argu- ment in support of the petition. WILklNSON EXPLAINS Judge Wilkinson insisted that the failure of of the soldiers personally to sign and affirm the facts alleged in the petition for a change of venue cor stituted an error which rendered all proceedings in the Marion circuit court illegal and that the cases were never legally ordered away from Wal ker county on change of venue. He. also set forth the argument that the 3petition did not affirmatively show that the soldiers were in custody at the time of the filing of the petition,- and that this also constituted an error because the constitution says a de- fendant in applying for a change of venue need not be in court provided I he is in a legal place of confinement. F Judge Wilkinson insisted that the defense will lose nothing by ruling l of the court in favor of the states con- l tention that the mol pressing of the l original indictments and the bringing of new indictments returned the cases to the Walker circuit court as it still
 has the same right to file another pe- tition for change of venue. He also
 urged tho court to consider the propo-
 sition if matters were reversed and
 the defendants desired to return their cases to the Walker circuit court. SOME DIRECT LOGIC Suppose the states witnesses could l not be obtained" said Judge wilkinson when these cases are called in the Marion circuit court and that orders of rolle prossqui are entered Suppose | the defendants reside in Marion county
 and that their conduct has been such
 as to prevent fair trial in that
 county, that indictments are returned
 a few years later, and that they seek tA afr1rr tN rrisdiction. Can it be said that .he de-
 fendants must go to trial in the county Eto which the venue was changed even I though they desire to be tried in the county in which the crime was com
 mitted?.' as
 l W. C.. Davis, who followed Judge
 Wilkinson, confined his argument to
 the first point involved that the petit ltfon for change of venue was never
 legally, submitted because it was not Fsigned and sworn to by the defendants. l He emphasized the fact that there
 must be substantial compliance with
 the code, which says the petition must
 be submitted by the defendants and argued that the signing of a petition
 by an attorney for the defendants was
 not compliance with the statute. He also called attention to the fact that If the supreme court should rule that the new indictments are merely a.
 continuation of the first prosecution,
 as urged by the defense, there will be
 no means of certifying the second in-
 dictments to the Marion circuit court | for trial as there is no provision in law whereby second certificate may
 be issued.
 FOSTER CLOSES
 | MT. Davis also argued that by mol
 pressing the original Indictments ana
 bringing new ones the state also may obtain fair trial and that is the
 only means of giving fair trial to the state.
 MT. Foster. who closed the argu- ment for the soldiers, called particu-
 lar attention to this reference of MT Davis and insisted that as the consti-
 tuition and law do not give the state the right of a change of venue, the mol pressing of an indictment and the
 bringing of another in order to ob- tain what the state would call fair trial would be doing something indi- recently which one could not do di- rectly.
 | He insisted that the state had no authority whatever to mol pros the in-
 dictments without giving a reason therefor, that no reason was given in open court for the motion to mol pross anu that no reason appears on the EeC- ord and that the supreme court can
 rule that the lower court erred in mol pressing the original indictments and may order the trial to proceed on the original indictments as if no notion | to dismiss had ever been made by tho state.
 l Referring to the states contention
 that a petition for change of venue
 cannot be signed by an attorney for 1 the defendant Mr. Poster cited an early case in Alabama wherein the supreme court had held that an act of an attorney with the knowledge
 and consent of his client defendant
 was an act of the defendant himself and would have the same force and effect as if the defendant had signed the paper and performed the act. BRIEF IN REPLY
 l In this connection, members of the
 supreme court pointed out that no l provision of the constitution or law
 requires a defendant even to swear to the allegations made in a petition for change of venue
 l When the arguments were com
 ment for the soldiers. Chief Justice
 Anderson requested that he give some time to the contention that defend ant need not sign the petition for a Ichange of venue in person. Tho ar- gument of Judge Wilkinson for the state that . failure to sign by the sOf-> diers had fnvalidated the act of the court in ordering the change had made