The morning call., 1893-07-19
MAY NOT HANG.
Murderer McNulty Likely
to Escape.
ANOTHER APPEAL IS MADE.
Vincent, Bruggy and Bander Affected
by the Latest Move Against
the GalIOWS.
ANOTHER APPEAL. is MADE.

That John McNulty, the murderer. will
ever hang seems now more doubtful than
ever. In any event the execution Of the
capital sentence imposed on him appears
further off than ever. The same may be
said of Murderers Vincent and Banden of
Fresno and Humboldt counties.
True, the United Sta es Supreme Court
has rejected the appeals of McNulty and
Vincent and Barden has only obtained a
respite. But it is equally true that Carroll
Cook, the counsel Of McNulty, has made
an other appeal. this time to the State Su-
preme Court. which has bearing on the
cases of his fellow -shedders of human
blood. The second appeal. with bill of
exceptions, will come up for hearing be-
fore the State Supreme Court on the 9th
prox.
In speaking of this condition of affairs
Attorney Cook said to CALL reporter
yesterday:
This bill of exceptions in the transcript
contained every objection that was ever
made in the McNulty case, and by it the
record shows affirmatiyely all the Federal
questions which were involved.
ut showed, in addition to the Federal
questions, also two or three entirely new
legal questions. The second appeal is set
down for hearing on August in the Cali
fOrnia Supreme Court, and in this second
appeal are involved each and every ques-
tion that has previously been involved in
the case. Some of these questions were
not real issues. however, by the record Of
the first appeal although duly passed upon
by the court. The last or second appeal
also covers the question as to the effect OF
a reprleve granted by the Governor. and
of the right Of Judge to sentence Nc
Nulty at all. a second time, after sixty
days had been allowed to elapse from the
date the judgment was entered. Both Of
the last contentious are made on the ground
that the statute of the State fails to make
any provision for such contingencies, and
our claim is that since the Political Code
provides th at no man can be punished eX-
cept as is provided in the Penal Code, the
court cannot supply the deficiency in the
statutes.
Every question in the McNulty case
will be reopened again. The last appeal
will bring up for argument again every
one of the old questions, and undoubtedly
will be ruled upon in the court. In the
Vincent case the same condition of affairs
exist, and the Banden case OF Eureka Is
| virtually the same. SO is the case Of
Bruggy. In the last two cases, however,
the second appeal has not been taken.
"Now, as to the probable results" con-
tinued Attorney Cook. III the Supreme
Court decides the McNulty case according
! to our contentious IL must reverse the sec
| ond Judgment. and if it reverse it on the
grounds which we claim the Supreme
| Court must necessarily instruct the lower
| courts to discharge the prisoner from ems
tody. This conclusion was reached by
| three Of the seven Justices on the Supreme
| bench when the first appeal was denied"
Wien the McNulty case was originally
| before the Supreme Court on appeal from
| the Superior Court the Supreme bench was
composed Of Chief Justice Beatty and JUS
| tices Mcfarland, Paterson, Sharpstein,
Harrison, Garoutte and De Haven. The
appeal was denied by Beatty, Mcfarland,
Paterson and Sharpstein. Justice Harri-
| son wrote dissenting opinion. which in
| substance meant The discharge of McNulty,
and this opinion was concurred IN by
| Garoutte and De Haven. Thus 1t is held
that McNulty was practically reconvicted
| and resentenced by the decision OF the
| Supreme Court, and that by majority of
! only one vote, four Of the justices affirm
| ing the Superior Court decision and three
| dissenting.
Since that decision was rendered Justice
| Sharpstein has passed away and has been
| succeeded upon the Supreme bench by
Justice Fitzgerald AS the same ques-
Iions are involved on the second appeal,
the decision of the Supreme Court will
| likely be the same with the exception of
that of Fitzgerald. Justice Fitzgerald
in the Supreme Court and his vote will de-
| eide McNuIty's fate.
| Attorney Cook was asked last night
what action he would take in case the
| Supreme Court decided against him in
| August. To this question he replied: ''If
the decision should be against US. we can
again bring up every I ederal question in
volved, which the first record did not
contain. anc we will have plain sailing for
another writ Of error in the United States
courts"
Thus it will be seen that there is
scarcely a chance for Murderer John Nc
| Nulty to end his career upon the gallows.
| If by some unforeseen action he should be
hanged, the execution viii take place many
years hence.
Should McNulty walk out of the County
| Jail free man, so would Vincent leave
the Fresno County Jail forever, and
Banden and Bruggy be in position to
| escape by a similar route