San Antonio daily light. [volume] (San Antonio, Tex.) 1886-1907, 1890-05-15
CRIMINAL CODE SUSTAINED
The Duncan Habaes Corpus Petition
Denied by Judge Maxcy.

Yesterday mornings train. two hours
late, brought State Attorney General
HOgg into the city To represent the state
i'm the habCaS corpus proceedings before.
Federal Judge MaXcy. in the case of Rich
ard Duncan.Ihe Val Verde murderer under
sentence Of death for his crimes. who has
asked the United STATES court to set aside
the Judgment Of the stare court against
him on the ground of ilIegalty and want
of power of said court to restrain him of
his liberty, and in effect asks the federal
power to nulify the state criminal code of
1870. and to turn him and other criminals
convicted under that code. out of prison
walls.
At 3 p. m. yesterday the case was called
for hearing by Judge MaXey. A motion
was made TO submit tho case to the court
without argument. but the court was in
doubt as TO its province to grant the petit
ton on its face and announced it would
hear all that the attorneys had to say re-
garding it: The petition which is an
enormous document, was read at length.
The argument for the state
was then opened by General Hogs
assistant, Mr. Harrison who
reviewed the allegations of the petitioner.
the burden of his argument being that
the court had no jurisdiction in this mat
ter, and that the defendant was not lille
gally restrained of his liberty: that
the supreme court of the United States
was the proper tribunal for him to appear
before, in which his case might be made
by writ OF error to appear To be a viola
ton of the national constitution. Mr..
HarriSOn'S address lasted about an hour
and half
He was followed by Attorney General
HOgg, who did not launch out into any
determined argument, treating merely. the
abSurdity OF the petition and the possible
serious consequences of decision in favor
of ~ Il l.,ll 4
dismissal.
Attorney McMinn for the petitioner then
followed in a lengthy defence of the argu-
mentS set forth in the petition and con-
tlnued his remarks in the evening session.
After the argument Judge MaXey an
nOunced that would reserve his decision
until today.
At this mornings session Judge MaXey
delivered his opinion orally. occupying an
hour and a quarter The opinion was a
very able one covering three principal
points as follows: That in the first place
he refused to decide on it until the state
courts had passed upon it.
That in the opinion of the court the GRIM
inal code was not in violation of the con-
StitutiOn Of the United States as alleged
in the ptitiOn.
That in case the nfOrmaIity and uncOn-
StitutiOnality of the code should be up
held, it would not release the petitioner
from his conviction of murder and SEN
tenCe of death under which he now stands
If the present code should be found un-
tcnable and be abolished. the old code.
which also preScribeS the death penalty
for murder, would instantly come into ac-
tive force, and the cOnstitutionality of
the court which tried and sentenced him
could be called into question under either
code.
Judge MaXey had no time to write out
his decision. and delivered it verbally at
the request of Mr.. McMinn. who antfci-
pating an adverse decision, wished to get
in his appeal to the supreme court of the
United States before the adjournment of
that court on the 10Th inst. After the de-
ciSion formal application of appeal was
made and granted