The Birmingham age-herald., 1923-06-24
c1

''What is her name" the prosecu- tor had asked so peremptorily, but l replied: "You1l wait long time before l answer that"
 If the court please" the slightly perturbed district attorney turned facing the judge, eve ask that this witness be instructed tG answer that question:.
 Then, before the judge could speak, I turned to him and inquired: Nav I address the court direct?"
 You may" the judge answered.
 "Then I beg leave to say" I be- gan. that I think it would hardly be fair to the young woman herself for me to speak out her name ana so drag 1t into a case of this nature. She belongs tC a splendid family. My refusal to answer is not based solely upon desire to be stubborn or rebellious, but upon the grounds of a desire to protect her. IL IS with due respect for the couTt anu ta all persons present that l decline to give the young woman's name. II if should really be important to the trial of the case that the jury know who she is, I'm willing to tell them privately; I'm willing to tell the court privately, or even the district attornsy; but there Is no power un- der the sun that will either persuade or force me to speak out her name
 As finished speaking, my attor- ney was on his feet entering an ob- lection to the question, which oo9ec- tion was quickly sustained.
 At that point court was adjourned till the following day.
 As I remember it there were fl witnesses for the prosecution ana one-myself-for the defense. All the testimony was in by the time or adiournment of court on Tuesday afternoon, September 26. And when court was convened at ID o'clock the following morning the district attorney began his address to the jury.
 No Appeal to Emotions.
 TrnIile the man who had prose cuted at the first trial, the district attorney was precise in all ms state anything that had not been touched upon by the evidence. The former prosecutor took an attitude clearly indicating a desire to appeal to the passion of the jury. He drew word nictures for them about matters collateral to the case and the evil dence. but in no way part or It. The prosecutor at the second trial however kept himself free from any impassioned style of argument ana apparently appealed to nothing but the reasoning power of the jury, coupled with their duty as jurors. His first address lasted scarcely an hour.
 Counsel for the denese had noth- ing to stand upon but the ground as formerly taken, that despite any construction that might be placed upon the statute. my crime, accord ing to all the evidence, was not one that ought to be classed with cold blooded and deliberate murder Pointing out those thing that would lii n a r. torneys told in detail of the very executive at the state prison spoken of previously in this narrative, he having planned to witness that one ill order that he might, either in second trial or in a plea before a pardon board, be able to describe the transaction in urging that l be spared from a like fate.
 The case went to the Jury at 2:30 that afternoon; and the clock showed it to be one minute after 4 when they filed back into the court room and took their seats again In the jury box. Imprisonment For Life"
 "Gentlemen of the jury" inquired the judge in the customary manner, have you reached verdict?"
 We have" answered the foreman. rising and holding in~his hand sealed envelope.
 A the jury box, took the envelope and passed it to the judge, who tore open the envelope and glanced at its con- tents.
 The clerk of the court will read the verdict" ordered the judge. hold ing the slip of paper out toward the clerk
 I had watched the judges face closely as he read the words written on that paper, but was unable to decide what he had seen there. The clerks hands shook slightly, yet he unfolded the small sheet of paper and. in a clear tone. read:
 We, the jury, find the defendant, John w. Kane. guilty as charged In the information. And we recommend that his punishment be fixed at life Imprisonment at hard labor in the state penitentiary."
 As in the first trial, my attorneys had the jury boiled, and each one, when his name was called, answered that that was his verdict. Then, upon motion of the district attorney that the court set date for passing of sentence. it was ordered that I appear for sentence at 10 a. m. on Friday. the 29th.
 Rain fell throughout the greater part of Thursday night, and when at the appointed hour l reached the court room and found it packed with all manner of persons, l was sur prised. My belief was that all per sons expected the court to follow the jury'S recommendation and sen tence me to life Imprisonment. but in that l was mistaken; some of the street car operatives had circulated petition Wednesday evening and Thursday, and practically all of the several hundred carmen and num- Der of other persons had signed it. which petition was to be presented to the court asking that the jury's recommendation be ignored and that l be sentenced to death.
 The Judges Oath.
 The district attorney addressed the court first. He did not refer to the petition. but urged that the judge pass the death sentence rather than that recommended by the jury. Both my attorneys pleaded, that the recommendation of the jury be heed ed; the senior member of the firm, who soon afterward was elected to the state supreme court, and is a member of that body still, called the youthful judges attention to the oath of office that he had taken and expressed hope that there was not the slightest possibility of his honor being influenced by any outside mat ters in violation of that sacred oath.
 The judge spoke briefly, reviewing the case in connection with the care that had been used by the prosecu- tor in selecting the best possible jury; he also spoke of the fact that the district attorney had not taken a single exception to the instruc- tions given by the presiding judge to the jury before that body retired to consider the case; he called atten- tion to that part of the instructions wherein the jury was told that if