Atlanta tri-weekly journal. [volume] (Atlanta, Ga.) 1920-19??, 1924-04-05
7 TORNEY ABSENT
Is H|GG|NDOTH
APPEAL COMES Up

TALLAHASSEE, Fla, April q
[homias w. Higginbotham, under
fntence OF 20 years for Sc de-
Zee murder in connection with the
bath OF Martin Tabert, of North
1akota, was without representation
|hen his motion for a new trial
me up for oral argument before
e supreme court Wednesday. l..
/ Wade, OF Green Cove Springs,
Iho defended Higginbotham at his
bal in Columbia county circuit
burt, telegraphed that the brief he
I'D prepared in the case fully stated
he contentious of the defense, and
bat he would not personally appear
orally argue the merits of the
|.se.
Counsel for the state, assistant
|ttorney General j.. B. Gaines,
fate's Attorney j. r. Kelly, and
afford Caldwell, briefly presented
be states side of the case to the
burt. Their arguments revolved
found questions raised by the de-
|1se as to the legality Of the in
Etment of EIigginbotham, and his
[nJence on Sunday, July ).
History of Case
The indictment against Higgin
btham was returned in Madison
|unty, later transferred to Dixie
}unty, the scene of the alleged
1irne, and by q change of venue at
Ie request of the state, the trial
bid in Columbia county, where he
II q oas, x,;o+az af eooopz5 y7arrAo y,o,,r
Er Saturday, July Z, and was SEN
need on Sunday, July s, to 20
bars Imprisonment.
Replying to the defense in ques-
bning the right of the Madison
Runty grand jury to investigate the
Ise, Stafford Caldwell, for the
hte, declared that the statutes gov
: ming the case left the matter ''ab-
Elutely in the discretion of the cir
it JUICE" The Dixie county
Tand jury had met and no indict
.ent was returned in this matter,
said, and pointed out that fail
Re to indict could be the basis upon
4llch the circuit judge could make
order similar to that in this case.
|Attention was called to the statute
XAiSh IL was SdId pIOVlQSu THAI LILO
Eand jury of another county may
Ilict when the court Of any particu-
& county deems it inexpedient for
rdn jury to be formed in that
.unty.
The statutory law in existence at
p time the venue was changed from
fxie to Columbia county was con-
:tutional, the states counsel argued,
Id authorized such change pom the
'bund judicial discretion of the
.lrt.
Judges Fairness Upheld
Fit has not been made plainly to
pear, and can not be. that the trial
lge acted unfairly or abused sound
+1icial discretion vested in him in
Herring the change Of venue" Mr..
ldwen continued, because Tabert
rs confined IN q camp Of the largest
sineSS concern m Dixie county,
hich raid a large percentage of the
kes and owned a large proportion
= the land and timber, employed a
rye number OF citizens and resi-
hts of the county. and a large per-
.ntage not so employed were indi-
|etly dependent upon it for business
.tronage."
The record IN the case. Re declared,
build uphold the contention that a
| L trial of the case could not have
en- obtained in Dixie county on
count of the prominence Of the
! Sc, it having been discussed from
| send of the county 20 the other.
Assistant Attorney General Gaines
|gued, in replying to defense claims
! the illegality of the Sunday SEN
lce, that il the sentence were de-
bred illegal, the court could not do
lerwise than to throw out the en-
e proceedings in the case from the
ne the iury's verdict was returned
Saturday, July Z, until the judge
tally declared court adjourned on
nday.
5This he pointed out included the
esiding judges action n granting
writ Of error to the supreme court,
action In adjorrning court, and
= other proceedings Of the court on
ndav. The result would be, the as
tant attorney general argued, that
! entire matter should revert back
= It's status of being r cess after
case had been given to the jury.
q proper procedure then w-uld :,
pointed out, to reconvene court,
90 in naSc Senfpnne