The Birmingham age-herald., 1921-04-22

1 ciency of the affidavit, consented to the change of venue. thereby indicating tha. the attorneys for the state were so con- vinced fair trial could not be had in l Walker county. they would not oppose a trial in another county.
 FIRST ORDER STICKS
 Under the facts in this case" said Justice Miller in continuing the opinion. l the order Of the circuit court of Walker county Eemovng the trial of Robert Lam caster for the offense charged in the in- dictment from the circuit court of Walker county to the circuit court oi Marion county was legal and valid It | is binding on the defendant and on the l state of. Alabama"
 In passing on the final question, the court held that when case has once ] been moved to another county on a change of venue it is within the power of the state to change the venue again l by mol pressing the original indictments and bringing new ones in the county in which the offense is alleged to have heen committed.
 l The opinion pointed out that neither 1 the constitution nor acts of Alabama per init the state to obtain a change of venue, that the mol pressing of an in dictment and the bringing of another one for trial in the county of original | JuFlSulCtlOn WOuIu permit JHe Sldle lO do indirectly that which it cannot do directly, and that this action would nullfy the section of the code which prohibits the removal of a case more than one time
 This court cannot approve or encour- age or permit such practice continued Justice Miller 'Tt will set no sucn precedent It cannot permit a defend ant to be liable to be harassed in that way. The offense charged in each in- dictment is the same. It matters not whether one is continuation of the other or not or a renewal thereof. The statute provides, when he stands in dicted for said offense, the trial thereof may be removed and can be removed only one time. When the change of venue was granted for the trial of the defendant for this offense in Marion county, the statute contemplated that Marion county is the only one in which the trial of the defendant for that of fense may. be had, regardless of the number of the indictments that may aft erwards be preferred against him for the same offense.
 1.-THE DIFFERENCE"
 ''This section of the code C7S52) de prives Walker county, where the offense was committed, of the right to try the defendant for this offense, but it does not deprive it of the jurisdictional right to indict for the offense. The order Of removal confers on Marion county juris- diction to try the defendant for the of- fense by the state with the consent of the court for any defect in the indict- ment or. other cause. If new indict- ment for the same offenSe is desired by the state, it would have to be returned by the grand jury of the circuit court of Walker county and certified copy of it sent to the circuit court of Marion pty xub a Jurisdiction defendant for that offense has been placed by the court fon the order Of re- moval Gases cited).
 Let the new indictment for the same offense in the circuit court of Walker county be cer flied with transcript of all the entries orders and proceedings lia the case before and since the nolle proseaui was entered to the circuit court of Marion county as the law requires, where the trial of the defendant under the second indictment for the same of- fense as the first can proceed as the law directs Sections 1854, 7S57, 713O and TAO, Code 1907.
 ssThe writ of prohibition is granted Anderson, c. J. and Sayre and Gardner, J. J., concur"
 TO FILE APPLICATION Application for rehearing of the cases involving the trial of the national guardsmen in Marion county on the charge of lynching Will Baird union miner, in Walker county will be filed by the state and no action towards the setting of a date for the trial can be taken until this application is disposed Of Judge Horace C. Wilkinson special prosecutor, tonight announced that the application for rehearing will be pro- pared at once and will be filed during the next week.
 The state has 15 days in which to pre- pare the application and to submit briefs in support of it's contentious.