The morning call., 1892-08-26
HE WILL NOT HANG TODAY.
The Sheriff Says He Has No War.
rant to Execute McNulty.
Ths District Attorney and Attorney General
Say, That the Judgment Of Death Should
Be- Carried Out

"The Sheriff has determined that ne will
not hang John McNulty tomorrow, said
Under Sheriff Deyeney TO a CALL repre-
sentative last evening.
And" continued the Under Sheriff, ''he
is acting under the advice Of those who
have the very best legal minds and whose
names have not yet been made public. The
Sheriff has taken advice In this matter, for
il is not trifing thing to take the life of a
man"
So John MeNulty, who has twice been
under the shadow Of the gallows, will not
be hanged to-day.
The prisoner became aware Of the deter
mination Of the Sheriff when shortly after 2
o'clock yesterday afternoon be was notified
that he must leave the cell in which be had
been for few days and return to the quar-
tiers be occupied for four years-cell 81.
McNulty, as soon es he realized what the
change meant, smiled family and said. II
guess III aOt be executed for at least thirty
DAYS" Then suddenly, in firm tone, be
added, Il don't fear death; l don't fear
hanging, for It would be all over as quickly
as that" aud he snapped his fugers signif-
eantiy, but what dislike and that which
worries me Is all the notOriety and what is
being said about my poor old mother" and
as he uttered these words his voice choked
with emotion and tears filled his eyes.
When the Governor granted reprieve it
stayed the execution Of the Judgment Of the
court that ordered the Sheriff to ''bang John
McNulty by the neck until he ia dead {"
Then the Sheriff read section 1927 Of the
Penal Code, studied ii and then sought legal
advice. The section reads as follows:
IL for any reason a judgment OF death has not
Dren executed and II remains 10 force, the court
IN which the conviction was had, on the appifca-
lion OF the District Attorney, must order the de.
fendant 10 be brought befoie U TTnon
Fgufgt hefo fHa So
must Inquire into he facts and II DC legal reason
exist against The execution OF the judgment
must make an order that the Sheriff execute the
judgment al the specified time. The Sheriff must
execute The judgment accordingly.
The attorney for the Sheriff declared that
the reprieye was "a reason why the judg-
ment Of death has not been executed, ("
and that under the section above quoted
the prisoner must be sentenced anew before
the Sheriff can legally execute him.
District Attorney Barnes gave it as his
legal opinion that there was nothing to
prevent the Sheriff from carrying out the
order Of the court.
Still the Sheriff was in doubt and he
sought further advice, and acting upon that
advice he yesterday sent the District At
torney letter, Of which the following is a
copy:
have read your esteemed note OF the 9th
instant ano noted .ts contents. or course as an
oIhcer ana man 1t IS my duty not 10 take
the Hie oi human being unless my author
~ 70 ubgueeboDaDle. mat The execution oil
McNulty tomorrow be lawful Is not enough,
Before Ii Is done l must have the nndoubfed
warrant OF law; There is but one way that this
can be assured and that is by resentence OF
a competent court again pronounced IN due
/ have now in my hands no warrant To ers.
cute McNuity tomorrow or any oIber time No
reported case adjudlcated by the Supreme Courf
mas helo that IL Is my duty to proceed with tie
execution under these conditions
II is true that IN BonelIa's case soma M tha
supreme judges indulge Ia the supposition won
mention, but This Is not authority What was
said was merely that which in your profession
you call dictum Without further ado I car
not bring myself 10 the conclusion that shonin
assume the exercise Of power at least doubtful
IN taking step which. IL once taken though
atierward proving wrongful In point OF law can
never be Ietrsced
To this District Attorney Barnes sent a
reply That he had nothing TO add to what he
had previously written on the subject ex-
cept to say that he considered IL 'stbe
day, August 26, between the bours named
in the death warrant" With this letter he
sent the opinion OF Attorney General Hart,
when sustains the position he has taken.
Mr.. Hart In his opiE on declares that "the
Teprieve of the Governor simply substituted
the 18th day OF August for the 18th day of
August, which the Governor had right To
do by virtue OF his constitutional power, and
1t is the duty OF the Sheriff to carry out the
order Of execution"
AS the matter now stands McNulty will
not be hanged to-day and the District At
torney will have TO have the prisoner
unless he adberes TO his expressed opinion
OF yesterday, whether the Sheriff hangs
him OF not McNulty VIII be legally dead to-
morrow"