The Birmingham age-herald., 1921-04-08
ATTORNEYS BEEN BATTLE FOR PLACE
 ID TRY GUARDSMEN
Counsel for Alleged Soldier LynChers Seek to Keep Juris- diction In Marion-State
 Is Blocking Move
By FRED H. GoRMLEY Montg omery Bureau, The Axe-Heraid 221-2 First National Bank Building

N~~RCOA-~Nf( f15 minutes after the supreme court
 Thursday called the case involving the petition of attorneys for the nine na- tional guardsmen charged with the mur- der of Will Baird, striking miner. in Walker county, for writ of prohibition preventing their trial in any county ex- cept Marion, the court informed the rep resentatives of the soldiers it did not care to receive any argument in support of the contention that the state waived any right of complaint against the ir- regularity of the petition for change of venue. This was taken to mean that the court believes the time for a contest on this point is passed and was ac- cepted as a preliminary victory for the soldiers.
 With this instruction, the attorneys for the soldiers insisted that no court in Marion county now has Jurisdiction Tn any cases against the soldiers growing out of the lynching of Baird, who was taken from the Walker county jail and shot to pieces January 13. The argu- 
 o'clock Thursday and had not been con cluded when court recessed at i o'clock until Friday morning. It is probable the case will receive the attention of the court a greater part of Friday.
 POINTS INVOLVED
 Lecil D. Gray of Jasper made the open- ing argument in support of the petition for writ of prohibition, while Judge Horace c. Wilkinson, special prosecutor z 4t. f<.x rk,f1 Irx1c~ 70 Wilkinson had not concluded his argu- rnent when court recessed for the day. Two points are involved in the case: First, the alleged illegafity of the peti- ton for a change of venue and, second, the right of the Walker circuit court to try the soldiers on indictments which were returned after the first indictments had been mol pressed by the Marion cir- cult court, to which they were sent on change of venue, and then by the Walker circuit court
 Attorneys for the defense admitted that the petition for the change of venue was not signed by the soldiers against whom the indictments were drawn, al Though the code says the petition shall be filed by the defendants. They con tended that an attorney may act for the [ soldiers, but that if such contention be incorrect the state should have attacked the OFQ6T TOT CIfdHSt Ol NCiAC DJ M m,lrrer. and that by waiting until this late day and until one of the soldiers had been placed on trial it waived it's f rights in this matter.
 MERELY CONTINUANCE On the second point, MT. Gray insisted | that when the case was once transferred | from the Walker circuit court to the Marion circuit court all Jurisdiction Of l the original court on cases involving the same matters passed to the court which | received the cases, and that. regardless | of the number of cases brought in the future, they are triable only in the Ma | rion circuit court. In other words. the | counsel for the soldiers asserted that the cases now pending which the state seeks l to try in Walker county are merely a continuation of the prosecution which was started when the soldiers were ar | rested on charges of murder, and that
 new prosecutions were not started wncn
 the original indictments were mol pressed ] and new ones returned.
 | MT. Gray also argued that only the de- fense can raise the question as te whether a change of venue has been Asgally granted. He said the state has \ b right of a change of venue. that sucn a, privilege is accorded only to tho de- fanse in order that it may have all saie- gt ards thrown about it when called be- fOA'e the par or JaStlCo. IIC oioO iAAt'.e'~~- tha attorneys for the persons accused o1 cri. ne may swear to the facts set forth in a petition for change of venue ana than the state may waive any rights II
 navA have in a case wherein the derenu- anfsA yId. not swear to the petitions m persoAL
 Rega ming the contention of the state that tiie dismissal of the original cases ana tms bringing of new indictments re- turnedt the cases to the walker crSu, eur court .Mra Gray said no decisions hde haen found which would indicate that a\.ca.sA when once sent to, another county Sxco,sYd be returned to the Juris, diction of the original court. He insisted that hv rrefunitting the dismissal of eases inc state trA,her than defendant would have the power of saying when ana where aj t1efendant could and wouio re- ceive ftiv trial
 WILKINSON REPLIES Judee NVNkinson. who answered MT crav,s' argument, devoted much atteR- ton to the first point involving the conte ndion ntthe soldiers that the state waiveds any; rights it may have haa when tlfaihd to direct the attention of tbe coart .b.hlow to the error in the pe- tition feeA tchange of venue.
 lie said oaiIyi the night before the cases were mol pressed did the stat9
  nropcrlysnada the motion for a change of venues He and other represents , tives of Hne $ tate presumed that at iorneys for thu defense would put the
 motion ini prop<sr form and he told the supreme court the understood the trial judge cid ,not know of the error in the petition.
 He insista<i that it was necessary to dismiss the, indictments and return the cases to the grand jury; for further true bills hecausse this was the only manner of dorrecting the error, an err | TOT which capuld have been raised bJ the defense l in the supreme court a any tir,c in AtEc event of a conviction. He declared every action of the Marion circuit courta was illegal because the cases were tnever properly changed from WalkerAto Marion and that the cases legally Swere pending in the l Walker county circuit court until the state mol pressed them.
 CASES DISMISSED | Judge Wilkim son said he did not be-
 the cases on the~ docket of the Marion | circuit court, but this was done out l of an abundance of precaution. As l soon as he reached Jasper after ths cases had been dismissed iii Marion he l made motion 20 mol pross' them or I the docket of the$ Walker circuit court according to his <aatement
 Regarding the sontention of the de-
 fense that the new indictments are
 inal prosecution Judge Wilkinsof cited l authorities to show that when cast
 has been dismissed tother cases grow. l ing out of khe same matters became Eew prosecutions And that therefore I the new indictments were properly 1T