The San Francisco call., 1897-10-30
The EBANKS EXECUTION
Serious Legal Troubles Over
Disobeying an Order Of
Court.
Also Complications Arise From Obey
ing Directions From Higher
Tribunals.

Captain J. c. Edgar, acting Warden
at the State prison at San Quentin, seems
to have found himself in trouble in con-
sequence of having failed TO obey the
order of the Judge of the Superior Court
of San Diego County in not executing J.
J. Ebanks the murderer, on the day and
time directed by the court. As stated he
was cited to appear before Judge Terrence
Of that county and show cause why he
should not be punished for contempt of
court. Naturally enough he appealed to
the Alto rney General for advice and his
. request has been the cause of much CORE
spondence.
1t seems that Edgar, on the day set for
the execution, at the request OF the pris-
oner's attorney, deferred the execution
from 1O:30 A. NJ TO 2:3O P. NJ. and in the
meantime the attorney got out writ of
habeas corpus.
At this point in the proceedings Henry
E. Carter, acting AttorneyG General, ad-
vised Edgar not 30 hang the murderer,
pending the hearing of the habeas corpus
matter When the conte pit matter came
up Edgar asked for help from the Attor-
ney.General's Office and Mr.. Carter tele-
graphed to Washington TO his superior,
Fitzgerald, who is there looking after the
Durrant case, Tor instructions. The fol-
lowing answer was received:
The office cannot advise the Warden to dis
obey Torrence's order, although a resentence
of EbankS at this time may cause serious COM
plcatlons violation of section 766 OF the
Revised Statutes of the United States and re-
suit in Federal intervention. Under no Cir
cumstances can the Office defend Captain Ed
gars action in deferring Ebanks execution at
The request of and for the accommodation of
EbanKs attorneys. In so far as the execution
was delayed by him upon your udvice based
upon the action of the Federal court and the
law, to that extent only you appear at San
Diego in his defense.
Upon the receipt of this Mr. Carter sent
this communication to Captain Edgar:
Dear Sir: In answer to your inquiry as to
whether not you should deliver Joseph
Japhet Ebanks to the Sheriff of San Diego
County under an order of the Superior Court
OF said county served upon you on the 2Sth
inst, requiring you, as acting warden of said
prison, upon presentation and delivery to you
oy the Sheriff of said county of a certified copy
of said order, to Immediately and forthwith
deliver 10 said Sheriff the said Joseph Japhet
Ebanks TO be by said Sheriff returned TO the
city OF San Diego and broug hit before he court
on the second day OF November, 1897. at tn e
hour of 10 O'Clock, to the end that said court
may inquire into the facts, and if no legal rea-
son or reasons exist against the execution OF
said judgment of death, that an order be N ade
by said court that the Warden OF the State
prison to whom said Sheriff msy be direct ed
thereafter to deliver said defendant shall exc
cute said Judgment of den nth ut time to be
| specified by the order of said court, desire to
state that the Attorney General cannot advise
you 10 disobey The order of sale court although h
| a resentence OF Ebanks at this lime may cause
| serious IMPLICATIONS violation OF section
| 766 of the Revised Statutes OF the United
States and result in Federal Intervention. Re-
". F. FITZGERALD, Acknowledgement.
| By HENRY Z. CARTER, Deputy Attorney Gen
eral.