The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1923-05-10

dtOr nomination Tor president.
times before the trial. but after being
cautioned by my brother on the bench
and after Robinson had been eau
toned by me when he discussed the
matter of Judge Forts warning with
me. uneasy lest Judge Fort put him
III jail he wrote an article more in
flammatory and more prejudiced than
the one about which Judge Fort had
cautioned him and the papers con-
tanning the article were circulated in
the courtroom. Is the court power
less to stop such actions?
Mr.. Baker this morning made ref
erence to a case in which the city of
Birmingham was held in contempt
because it caused such noise in con-
structing a street as to interfere
with the administration of the courts.
If such a noise can be stopped, cannot
we stop a noise which walks through
the door, such as newspaper or a
citizen?
IF the states attorney would re-
cite to the jury all previous charges
against VERIFY, the judge would eau
ton him.
II place the protection of human
life and liberty before the liberty of
the press, and the defendant VERIFY
will get a fair trial if / can give it
to him. Is the publication of such
an inflammatory article different
than the mob which takes part in a
flogging?
When the press goes wrong they
come under the law like any other
citizen. We don't try cases here as
am told they do in France. bringing
into them every incident of man s
life 1 am trying to follow the rules
of the supreme court Of Alabama"
xr;.u Called
When the afternoon session was
convened. Solicitor Davis called the
names of Paul Cole, city detective;
Matt Murphy and Fritz Thompson,
attorneys for VERIFY; r. b. Chandler,
business manager of The Post: Rufus
Nix, circulation manager of The
Post; w. C. Burson, former city en-
ploye, and George D. kitzinger, for-
mer employee of The Post. When he
attempted to examine Kitzinger, Mr..
Baker began his fight, which was
climaxed by Judge Helms opinion
and decision.
Argument began Immediately aft
erward on a demurrer entered by the
state to the defense's answer. Will
lard Drake, first assistant solicitor,
declared the publication of the article
prevented a fair and impartial trial
in Nudge Forts court and that the
State assumed that Robinson carried
back the information that he had
been warned not to publish such
story again, because an article to TINS
effect appeared the next day In The
Post.
Mr. Cahaniss interposed here that
the first story differed from the one
causing the citation in that 1T said
VERIFY would be indicted for the flog-
cling of Dr. Bowling, as he was few
hours later.
Drake went on to say that the story
laid much stress on Yerby's police
record, and then concluded by asking
that the demurrer be sustained. MT
Cabaniss put the issue up to Judge
Heflin, saying that defense counsel
had discussed the case as fully as
possible. Judge Helm then sustained
the demurrer.
Solicitor Davis then attempted to
put Kitzinger on the stand. Mr.. Cab
aniss Immediately objected, and Mr.
Baker said the defense rested upon
the "sufficiency of it's answer, which
the court had ruled insufficient, and
did not desire to plead further"
Judge Helm showed tendency to
proceed by saying the state must
prove what it alleges" Mr.. Davis said
he wanted to question the witness.
Mr.. Baker objected.
The way we try cases here, we try
to get at the truth" Judge Heflin
said.
We'll, we submit ourselves on the
original BILL" returned Mr. Baker.
Are not these men running that
paper" Judge Helm went on.
'The bill of complaint doesn't
charge it," Mr.. Baker interjected.
Il don't think it was necessary for
the solicitor to move this citation
| Judge Helm stated. Il think the
court had the right to summon them
from the bench. This case is going
to be decided on its merits"
Cabnnt.s' Motion.
Attorney E.. II. Cabaniss, opening
the defense. when the case was called,
moved to discharge the complaint on
the ground that it was insufficient.
No contempt had been intended or
| committed by The Post, he insisted.
1T is merely statement that a
person placed on trial had been in
dfcted for a previous offense," said
Mr. Cabaniss. 1T is not alleged in any
| particular that the publication was
libelous or that every word contained
| in it was not true"
He then recalled John Stuart Mills
essay on Liberty" which declares
freedom of the press is the best safe
guard against corruption"
is there any misstatement of fact
in this story?" he asked as he held up
the clipping. rs there anything that
was not well known to the COM
! munity?
1T was merly matter of public
record and information that had been
published in other Birmingham news
papers. How could it have had any
effect on the minds of the jurors?
There never has been case" he
concluded. where any such, case was
ever, held to be in contempt by any
| court"
Solicitor Davis followed Mr.. Cab
aniss. alleging the purpose of the
story was to incite public sentiment,
and spent nearly an hour reading au-
thorities He quoted cases in North
Dakota and North Carolina, the latter
involving Josephus Daniels, editor of
the Raleigh, N. c., News and OBJ
server
Large Crowd Watches Baker.
Then came the former Secretary
OF War. a rather small and unobtru-
sive man in appearance, wearing
neavy shell-rimmed glasses and with
hair Just threatening to gray at the
edges. A crowd which filled every
nook OF the court room had been
peering for some time at this man
OF quiet demeanor, who spent most
of the time during Cabaniss presen-
| tation in reading a law book stand
Ing room was at premium and all
seats had been taken up with law
yers and persons interested in the
trial from the local angle and to get
sight of the former member of ex-
President Wilson's cabinet.
Mr.. Bakers first act was to make
personal conduct or characteristics
of the judge himself were not
brought into issue. He went on to
say the question was confined within