The watchman and southron. [volume] (Sumter, S.C.) 1881-1930, 1921-10-26
COURT VERDICT
SET ASIDE
BY APPEAL
Fox, Kirby and Gap
pins Although Gull
ty Beyond Doubt Es-
cape Death Chair
For a Time

Y.
driver, will net be electrocuted To-
morrow, the date set for his deatn.
His two co-partners in crime !. ..
Kirby and Jesse Gapplns, likewise
sentenced for electrocuuon tomor-
row, already have appealed, "hlcn
stays their execution. Under no
circumstances can either of them
be electrocuted before next year,
for, regardless Of the action OF the
state supreme court in the sepa-
rate actions before it, none OF the
men can be resentenced until jan
uarv. when the next term OF the
court of common pleas meets at
Lexington.
Justice Thomas P. Cothran, Of
the state supreme court, this even
ing at the chamber of the appellate
court, refused the plea Of H. A. l.
Rosenberg, attorney for Fox, Tor
a writ of supercedeas. After the
Justice had dismissed the writ OF
habeas corpus granted by him yes
terday Mr.. Rosenberg then appeal
ed from the decision OF Justice
Cothran to the full personnel Of the
supreme court, and service of the
appeal was accepted by Samuel NJ.
Wolfe, attorney general, and T. C.
Callison, solicitor Of the Eleventh
judicial circuit, who prosecuted the
three convicted murderers. Inc
fling of a verified copy Of the ap-
peal On A. x. Sanders, superln-
tendent Of the state penitentlary,
by Mr.. Rosenberg this afternoon
automatically stayed the execution.
One Of the most concerned spec
tators in the crowded court room
was the father Of c. 0. Fox, VINO
was here in the hope that some
eleventh hour intervention would
prolong the life Of his son. He
wired his relatives at Stanley
Creek, n. c., that his son would not
die tomorrow.
Mr.. Rosenberg made four major
points in his petition and argu-
ment:
THAT Fox slgnified his inten-
ton the day after his trial, which
commenced September 13, of TAX
ing an appeal, but, because OF the
abandonment Of the case by Nc
Kenzie Barr, his court-appolnted
attorney, through his Ignorance OF
the law, and because Of penury, he
was unable to employ counsel, to
perfect the necessary papers with
in the ten-day limit. That, If 1t
were not for the gratuitous SER
vice rendered by Mr.. Rosenberg,
Fox would have to die without re-
course TO his legal rights.
2-That on october u, the at
torney general had refused to ac-
cept service from Mr.. Rosenberg
on a writ Of appeal on the plea
that this was not matter for the
attorney general, but for the CIR
cult solicitor. The solicitor was Of
fered service and he also refused
on the ground that the prisoner
had lost his right because Of his
failure to give notice Of going to
the supreme court before the ten
day limit after conviction. He
contended that this service should
have been accepted.
3-That the court which tried
Fox was without jurisdiction and
that the grand jury which drew up
the bill OF indictment was illegal
in that the minutes Of the clerk OF
court did not show that the mem
bers OF the jury We're sworn.
4-That section 3S4, Of the civil
code of 1912, providing only ten
days for appeal is repugnant to
section l, article IA, of the federal
constitution, in that it deprived
Fox Of his liberty and life With
out due process Of law, he con-
tended that Fox should have the
right of appeal up to the tine Set
for his execution.
Solicitor Callison in his argu-
ment dismissed as trivial the con-
tentions of Mr. Rosenberg. He de-
c!ared that the Lexington grand
Jury was sworn, according TO law,
and that, through error, the clerk
Of court did not insert them in his
minutes, Judges Devore. Gary and
Sease, he said, had declared that
the grand jury was legally sworn
and had dismissed appeals on this
same ground.
Justice Cothran in his oral de-
cree held that the petition OF Mr..
DID not present any
grounds on which he, as a mem
Der OF the supreme court could
give any relief. He held that the
grand jury was legally
sworn. that the statute law allow
ing only ten days in Which to APP
peal was not in conflict with the
federal constitution, in that, in this
case, the due processes Of the law
had takne their course, and that
the state supreme court has re-
peatedly held that. unless a defend
ant takes advantage of the stipu-
lated time for appeal his case is
out Of court
He then dismissed the plea for
g writ of habeas corpus, and re-
fused the prayer for a writ Of su-
percedeas. which would stay the
death sentence until an appeal
from his decision would be per-
tected. He contended that he was
Dowerless. as one member Of the
court, 10 issue such a writ
Yesterday. Justice Cothran is
sued an order of habeas corpus to |
bring Fox into the court this at
-ernoon, but, through an oversight