The San Francisco call., 1897-11-11

for writ of habeas corpus, an appeal had
been taken 10 the United States Supreme
Court, and the judg gment denying the ap-
plicatlon for the writ had been affitmed
bv the court, and where. as soon as the
Judgment of the United States Supreme
Court was rendered the State court with
out waiting for the mandate of the
United States Supreme Court to issue,
proceeded to fix the day for the execution
of Jugiro.
1T was contended that this action of
the State court, taken before the issuance
of the mandate, was. under section 766 of
the Revised Statues, null and void. The
Supreme Court, however, in passing upon
this question, held the action OF the State
court valid and said after stating the con-
tention and quoting from section 1866:
The jurisdiction of the State court In the
cases specified is restrained only peIfding the
proceedings in the courts OF the United States
and until final judgment therein. This court,
on the "a h OF November, 1890, affirmed with
costs the Judgment OF the Circuit Court deny
ing the iorner application for the writ of
habeas corpus.
That was its final judgment in the
premises, because it determ ned the W hole
controversy Involved In the appeal. Upon
lis rendition the appeal from the judg-
ment OF The Circuit Court was no longer
uending in this court. And nothing
remained that was in process of being
heard and determined. It was none the
less a final disposition of The case, because
It a subsequent date, under the rules and
practice or this court, mandate should
be sent down to the Circuit Court showing
the TACT of atfirmanCe of its Judgment.
As Congress went no further than 10 stay
the hands of the State court util final
judgment, we cannot superadd the Condi-
tion that the fling of the mandate
mere affirmance of its udgment refusing
writ OF habeas corpus is absolutely
necessary before the State court can
proceed in the execution OF the judgment
OF conviction.
"It is perfectly clear to the most ordi-
nary understanding that the Superior
Court of the city and county of San Fran
cisco can proceed at once to fix the date
for the execution of Durrant's sentence,
and the sen lence can be executed withou
waiting for the issuance and coming down
OF the mandate of the United States Su-
preme Court in the habeas corpus appeal.
l wish to add, however, that l have, of
course taken the necessary steps to have
he mandate of that court issued at as
early date as possible. In making mo
tion for issuance of such mandate it is
necessary to give notice to Durrant' S
counsel. This notice [ have given, but,
because OF this requirement, the motion
cannot be heard sooner than next Mon
day morning, the 18th inst, and It is ior
that date that | have noticed it.
While | have done this out of an
abundance of caution, still 1t Is absolutely
unnecessary TOR the Distric, Attorney OF
!he city and county OF San Francisco or
for the Superior Court OF that city and
| county 10 delay proceedings against Dur
rant for a single instant because of the
nOn-lSSuance OF this mandate"
The CALL correspondent saw Attorney
General OF the United States Mckenna to.
night. He said: 81 know nothing about
the case, because IL is not matter to
come before the Department of Justice.
District Attorney Barnes wired me to
hasten the mandate, and l eplied that
the matter did not concern the Depart
ment OF Justice but 10 use his discretion"
Judge Fitzgerald received number OF
tell grams tonight congratulatlng him on
the outcome of the case. Among them
was one from Governor Budd.