The Birmingham age-herald., 1921-05-06

The allegation was made in the brief in arguing against the courts holding that attorneys for Lancaster and the other soldiers had the right to swear to the facts in the petition for change of venue when the constitution and code require the affidavits to be made by the defendants themselves.
 Referring to the opinion of the court, which held the attorneys affidavit to be sufficient, the brief which was writ ten by Judge Wilkinson, said:
 "Eliiah on one occasion said: Choose yc.this dny. whom he shall serve.' If MT. Justice MiIler's Opin-
 ion be the Inv, well and good, but
 if reason, precedent and the express
 declaration of the statute be law, then we assume the court will nc- knowledge 1t.
 "With all the respect that we must show for such holding. we submit that this court abandoned
 its Judicial functions. resolved it- self into n committee of the whole
 house. amended the law as 1t is
 written in the boks. appointed It. self governor pro sempOre and np-
 proved the amendmcnt."
 The brief also said that when Judge Mayfield, code commissioner comes to the section of the code with reference to change of venue, he must amend it under the courts decmision and cite the Lancaster case as authority for the amendment.
 CITE MANY AUTHORITIES
 Many authorities are cited by the state in support of its Contention that an application for a change of venue must precede the granting of such q change of venue, that a defendant him self and not his attorney or any other must make the application for the change of venue under oath, that fail- ure to make the application under oath by the defendant himself renders void any trial in another county and that when the change of venue has not been granted naecordance with the terms of the law 1t is vcold and may be at tackled by the state at any time. The court had held the state had agreed to the change and was estopped from attacking the illegality of the order later.
 After consuming 62 printed pages in arguing the grounds for a rehearing and reversal of the decision of the court, the brief closed with the follow ing statement regarding what the states attorneys called .'uncharita ble by MT. Justice Miller who prenared the opinion in the case
 "There are number O. uncharitable suggestions in the opinion about the state doing Indirectly what 1t cannot do di- rectly; about the state nullfying sec tion 7S52 of the code and harassing the defendant all of which it seems to us assumes that the state is trying to do something questionable and that it's trial judiciary is party to it.
 There is nothing in this record to show that the state or it's prosecuting or judicial officials had any such purpose in mind, and at least they ought to be presumed as innocent as the defendant.
 CASE NOT SET
 '.IIow can he be harassed?. His case was not set fer trial when 1t was mol pressed. Not witness had been sum- moncd in his behalf. lis case had been t,ied. inisiriai entered and wou.d have tc be reset, which had not been done.
 ''1he presence ef the defendant wasl not necessary when the case was not pressed. He had no witnesses summoned on that occasion. He did not have to be present when he was reindieted or when he makes his second application for change of venue. We fail to sec where