The record-union., 1897-11-17
DURRAAT CASE AGAIN.
CLEAR STATEMENT MADE BY
ATTORNEY w. w. FooTE.
How Public Sentiment Was Great
ed by Misapprehension Of
the Facts.

has very clearly stated the facts in the
matter of the appeal in the Durrant
case as follows:
There has been much misrepresent
ton, ard, consequently. much misun-
derstanding of the recent action of our
Supreme Court in the Durrant case.
So far as the misrepresentation is will
ful, and much of it seems to be, it is,
of course, idle to combat it. None SO
blind as he who will not see. But
where mistaken views are founded upon
honest misconception it may be that
move them.
l am prompted to this writing not as
a defender of the Supreme Court, for,
in my judgment no judicial body in the
land less needs one, but because of
what seems to be a determined, con-
certed, and indeed, malignant attempt
by g part of the press to mispepresent
| the action of that body upon any and
! all occasions. The effect of this upon
! the minds of the great majority of
people cannot be other than pernicious.
and this has worked a serious deerlment
to the welfare of the State.
The undisputed facts in the Durrant
matter are the following: Durrant had
appealed to the United States Supreme
| Court from an order of the Circuit Court
refusing him a writ of habeas corpus.
Pending the decision upon that appeal
! the State authorities were powerless to
| take any further steps in his case, and
any attempt upon their part in that
regard would have been null and void.
| Such is the express language of Sec,
| ton 166 of the United States Revised
Statutes. Such We're the instructions
| of the Attorney General of the State
| to the wardens of the penitentiaries,
and such is the exact Interpretation put
upon that section by the Supreme Court
of the United States in the Jugiro case.
| Q40 u. s.
| Not long ago it was published in the
newspapers that the Supreme Court of
| the United States had dismissed Dur
rants appeal. There was no judicial
evidence of this fact impaired to any
one. AS to judicial knowledge of the
fact / shall speak hereafter There
upon Durrant was brought from San
Quentin before Judge Bahrs, who, de-
spite Durrant's showing of cause and
objections to the procedure and with
that the Supreme Court of the United
States had in fact acted upon the APP
peal, proceeded to order the execution
of DurIant and fixed the date thereof
at two days later The public prints
| described the shudder that conyulsed
the courtroom at the announcement
and we'll may it have been SO. The
appeal to our Supreme Court followed.
This was accompanied by an applica-
tion for a certificate of probable cause,
which was granted.
For the benefit of those not lawyers,
it may be said that the effect of a
certificate Of probable cause in Grim
inal case is to stay the execution of the
judgment order appealed from. Appli-
cation for it may be made either to the
trial Judge or to the Supreme Court
1t has over and over been held that it
| should be freely granted upon a show
ing in the record, not alone of reversi-
BILE error, but of doubtful propositions
of law. And the justice of this view
cannot be combatted by any fair
minded person. 1t would be a disgrace
to our Jurisprudence if a man should
be compelled to suffer punishment when
it was either clear that he had not been
accorded a fair trial under the laws of
the land, or even when the fairness OF
his trial was in doubt
Upon the granting of the certificate
| followed the public clamor fostered
and increased by newspaper n1isrepre-
sentation and swelled no little by the
voice Of Judge Bahrs. I am the last
man to decry fair discussion of the
judicial decisions. Legitimate criticism
of the judiciary should be heartily en-
couraged, but just so far should unfair
attacks and unjust aspersions be dis
countananced and condemned And
this, if for no other reason than that
byvirtue of their positions these Judges
are enforced to silence and cannot go
to the press or rostrum to defend their
judicial action.
But / think it will not be disputed
that the aggregate knowledge of the
law possessed by the Justices of the
| Supreme Court exceeds the individual
legal attainments of Judge Bahrs, and.
therefore, his contribution to the up
roar may be eliminated from consider
alton. The noise of his present clam
| or, even to it's echoes, will soon dissi-
pate into silence; but it will be many
| a day before the affront that, by his
order, he put upon the decent and or
| DERBY conduct Of judicial affairs will
have passed from the minds of men
Why, even in the Jugiro case, so
much talked of. the trial court placed
the day of execution more than a
month after the date of the order. thus
fixing time after the mandate of the
| Supreme Court would issue The
| court thus gave the defendant his life
| until after a petition for rehearing TO
| the Supreme Court could be made and
passed upon. If that court during the
| intervening thirty days had seen fit.
| as it had the unquestioned power to.
| to yacate or modify the judgment in
| the Jugiro case, Jugiro would have
been alive to receive the benefit of it.
| The Supreme Court Of the United
| States may (and nobody can say that
| it will noD modify or set aside fhe
| judgment in the Durrant case What
a commentary upon the administration
| of justice in California it would have
afforded if. before such modification
| or reversal. Durrant would have been
executed under this order of Judge
/ BahrE.
] commend a reading of the Jugiro
| case for more reasons than seem to
/ have occurred to him. He will there
| be told that, for the undue and un-
seemly haste displayed. serious compli-
cations may arise and that State
courts are liable to have their orders
modified or annuled. until the man
date OF the United States Supreme
Court is finally handed down
| But, first, what is the Jugiro case
It was a decision by the United States
| Supraule COurf uporl I,1srfro'S apnlica :