The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1892-08-12
ANOTHER APPEAL.
Carroll Cook Makes New Attempt I'm
tho Snpreme Court.

Carroll Cook Makes Now Attempt I'm
the Supreme Court.
Yesterday morning the Supreme Court
heard arguments on a notice Of an applca-
ton for al appeal from the order OF Judge
Murphy sentencing the murderer, John Nc
Nulty. to be hanged August i. and from
the judgment in this case.
A large number Of attorneys filled the
courtroom when proceedings opened. AS
sistant District Attorney Hosmer, at the
request OF the court, read the notice object
ing 10 the order and judgment and which
has already been published. He also read
a certified copy of the minutes of the Su-
perior Court III the McNulty case from his
sentence on the 18th OF June last. The
affidavit of District Attorney William 5.
Barnes. Itself a compendium Of the law
history OF the case, was also read.
The contention was then made by Mr..
Hosmer that the decision of the Supreme
Court made February l9 last fully covered
this appeal. That appeal having been
passed upon no other would lie. II was an
attempted appeal from a matter already
adjudicated upon.
CARROLL COOKS OBJECTIONS.
Carroll Cook, for McNulty, objected to
any dismissal on the statement of Mr. Hos
mer. He read an affidavit of his own to the
effect that j. \. (. Wilson had acted as Nc
Nulty's attorney until the case came before
made bv affiant was that the affidavit Of Dis
trict Attorney Barnes was both incomplete
and incorrect, stating some Of the points in
particular.
In the next place afiant denied that the
Supreme Court had passed upon all the
grounds of the appeal. The first appeal,
which was dismissed, was merely as to
whether the judgment and passing OF the
death penalty should be sustained. The
second appeal which was decided by this
court, who sent the case back TO the lower
court, Was founded on question OF the va
lidity Of law passed by The last Legislature
regarding the place Of execution.
Mr. Cook urged that the present appeal
was upon an entirely different record. 1t
was taken under section 1881 Of the Penal
Code, that to clear the way for writ of
error Affiant asked for a writ Of probable
cause in the circumstances.
Attorney General Hart contended that
unless this appeal were dismissed another
appeal could be taken on another return to
the court below, and so on ad infinitQm.
a QUESTION BY THE COURT.
In reply TO a question by the court as to
whether the appeal stayed the execution,
Acknowledgement Hart admitted that 1t did
not. and that it was quite competent for the
court, without passing on the merits Of
case to grant stay OF proceedings.
At the same time Mr.. Hart urged that as
the court had made An order for lower
court to carry out an appeal 10 stay tho exc
cution of such order was Irregular. After a
final judgment by the court, an appeal is
frivolous and irregular.
The court stated that there might be an
appeal without merit and yet not be irregu.
lar. The record would be the best criterion
as to merit
Attorney General Hart urged that there
was no merit in the appeal, but did not
claim any absence of jurisdiction on the
part Of the court Tie hearing was proof
Of that. The irregularity consisted of new
grounds for an appeal Defendant might
have complained of the day set, but had
not done SO, and the date was within the
statutory limits.
Mr.. Cook claimed that the statute In the
matter OF appeals was clearly In his favor.
In the Sprague case an appeal was allowed
after final judgment and the day fixed for
execution
Finally the court decided that this was an
attempt to review judgment entered In
the case and that the merits of the case re-
oured looking into. Justice Mcfarland
stated that 1t WAS his personal opinion tina
the appeal should be dismissed. At the
same time while an appeal was pending no
man should suffer the extreme penalty Of
the law.
The court took the matter under advise
ment, and at o'clock in the afternoon no
decision in the matter bad been handed
down.