The Birmingham age-herald., 1923-07-04
BARELY STOP FIST FIGHT AT TRIAL OF
 CONVICT FLOCCER
Higginbotham, On Stand, Denies Cruelty In Whip
 pima Of Tabert

ping Ot laDert
 LAKE CITY, Fla, July 9.-Angry attorneys sprang at each other today during the trial of Thomas Waiter Higginbotham, former convict whip ping boss, and a fight was narrowly averted by court attaches.
 States Attorney James R. Kelley, incensed at remark made by Leon- idas E. Wade, chief counsel for the defense, who alleged the states at torneys were not conducting the case fairly and squarely" made for MT. Wade with fists doubled up but other attorneys and a deputy sheriff nterferred A few minutes later hos tilities were again renewed, and the officers again blocked chances at any flying fists landing on its intended mark Order was restored in the court room and Judge M. A. McMul- lin ordered the trial to proceed.
 The jury was not a witness to the scene, 1t having been ordered by the court to retire, at the request of MT. Wade, in order that point of law could be argued.
 Declares He Was Doing Duty.
 Higginbotham, who is charged in an indictment with murder in con nection with the death of Martin Ia Der of North Dakota. presented sworn testimony today, declaring he was performing his duty in whipping Tabert ten licks with a strap weigh ing one pound and eleven ounces.
 The defense also presented 37 out of total of 53 character witnesses, all hailing from Clay, the defend ants home county. They testified Higginbotham was of good character. of ia1 Green Cove Springs, the county seat, and farmers made up the testifylng Idelegat ton. Four of the 37 said they were related to the defendant. The defense, it was announced, has summoned approximately 50 more tfurther witnesses, to appear here to- morrow.
 It was while one of the character witnesses was on the stand that the clash between attorneys occurred. Stafford Caldwell, special prescott ing attorney, was rosS-eXamlnlnS a witness as to whether he knew any thing about Higginbotham's record for brutality in performing his duty as whipping boss.
 Charges Prejudice.
 Defense counsel objected, saying that there was nothing in the ind1ct- ment as to Higginbotham being a whipping boss. A lengthy argument ensued between the opposing coun- sels and MT. Wade requested the court to retire the jury. When the last juror filed out of the room Mir. Wade declared the sole purpose oi the state in asking such question was to prejudice the minds of the jurors and to seek newspaper no- toriety.
 Mir. Caldwell objected to MT Wade's ha Wade had made accusations against members of the state counsel which he took as an insult. MT. Caldwell then reminded Judge McMullln that Mr. Wade had secured the admission of evidence that brioe ot $o.ooo witness for him, to come to represent the state on the assurance he would present proof The court said such had been MT. Wards promise and so far it had not been fulfilled. MT. Wade, addressing counsel for the state, declared there should be no worry as to forthcoming proof. It's coming" he declared, and states attorney sprang at him from across counsel table.
 Order Restored.
 The states attorney Is a cripple and his crutches went to the floor as he II minutes for the court to restore order.
 The argument on the brutality question was resumed and Fred Cone, a member of the defense counsel, said the defense would withdraw its ob lection. The discussion was continued and remarks were exchanged between Mir. Kelley and Mir. Wade which re- suited in the former again making rush on the defense attorney. Sher- ifs deputies and attorneys again in terfered.
 Higginbotham was on the stand for one-half hour. After declaring he had struck Tabert only the maxim i'm number of licks allowed b. law, he went into full details as to duties of deputy warden, the three reports made to him that the Dakotan was not working before he finally whip ped him and the medical and nursing attention given him after he became III. The state asked him only minor question on the cross examination. Former Guard Testifies.
 The last witness today was J. T. Mills, former guard at the lumber camp, who zorro borated Higgtn- botham and other witnesses as to the number of licks struck and when the Dakotan became ill.
 On being examined, the witness denied he was receiving 50 a day and his expenses from the defense to come here to testify. It was brought out that he was first state wit ness, but was discharged and then summoned by the defense. The wit ness related how he attended confer ence when he was a state witness, saying those present were counsel for the state and Mr. Crimson. He added that the North Dakota attorney i handed him a pamphlet about the case, published by a North Dakota committee. He claimed MT. Crimson gave pamplets to other witnesses. The state reserved the right to re- call the witness later.
 Judge McMullin again urged coun- ! sel for defense to speed up the case and threatened to hold a night ses- sion tonight. The defense announced that in all probability 1t would be able to close it's case late tomorrow
 A collect telegram. addressed to the judge and defense" stopped the proceedings late today. The court refused payment on the unopened message, declaring he was not fin terested to the extent of $1,S3 tolls" Higginbotham accepted the tele- gram, pulled from his pocket several crisp bills and paid the messenger
 The telegram was from party, it is understood, residing in the west who wanted expenses to come here to testify. The defense did not make public his name or address.