The San Francisco call., 1897-10-05
NEEDLESS
VEXAqI0u
OF COURTS
The Last Scene in the
Durrant Case About to
be Enacted.
"HABEaS CORPUS" is SC0FFED AT.
United States Supreme Court to
Be Petitioned by Warden
Hale.
WILL BE PRESENTED In NOVEMBER.
Attorney-General Fitzgerald Pleads
for Justice and Mooks
at Delay.
WILL BE PRESENTED In NOVEMBER.

To w. HI. H. Durrant, Appel
liant, and 40 Messrs. a. H.. Hart
and Il. II. DeWees, his counsel:
please take notice that the ap-
peIiee by his counsel will, on
the first Monday i'm November.
1897. at The opening of the SUI
prene Court of the United
States, Or that day or as soon
thereafter as counsel can be
heard i'm the courtroom of said
court in the Capitol building
at NVashingfOn, District of CO.
Iumbia, make and submit 40
the said court the motions in
writing 10 dismiss this appeal
ON writ of habeas corpus and
10 affirm the order appealed
from.
The Last scene in the Durrant case is
about to be enacted. Preparations have
been made for final denouemcnt in
Washington on the first Monday IN No.
vem ber. 1t is to be determined then
whether or no the farcical habeas corpus
writ can elbow criminal out of the reach
of justice for time without end. w. F.
Fitzgerald, on behalf of the State of CaIifor-
MIA, in conjunction with T. C. Catchings,
is of the opinion that all forms of law
have been observed in the trial of the
case, and that the defendant has had
every opportunity to make his defense,
and since his conviction has been affirmed
by the highest court in the STATE the farci-
cal lines of the play should be drawn and
justice done according TO the sen ntence of
the law.
Durrant, through lis attorneys, was
served yesterday with motion by Appel
ice Hale, the Warden of San Qleniin, to
dismiss the appeal on the habeas corpus
writ, VIII ch was denied by The Circuit Court
also to affirm the orGer Of the lower court
an d notice OF motions. AS has been stated
this nj otion will be presented TO the United
States Supreme Court on the first Monday
in Move m ber, and the whole case lies on
the order OF that court. Ii the highest
court in the land may see fit 10 allow the
writ, then a man convicted Of murder and
sentenced TO a ftlon's death may evade
the law from time TO lime by the applica-
tion of the time-worn writ and justice will
60 begging, but il not the order of the
lower and State courts will be executed
and Durrant will be swung into eternity.
Service of the brief as well as the motion
to be placed before the Supreme Court
was acknowledged yesterday by Attorney
A. L. Hart for appellant Durrant and as
but a brief month Is between now and
tho last motion which cap be presented
10 the highest court in the land, many
situations will undoubtedly be held
by Durrant's attorneys.
The grounds OF the appellants ap plica-
tion for the writ of habeas corpus are
shown to b. that the provisions of tie
constitution and Penal Code of California
are al eyed 10 be in conflict with the fifth
and fourteenth amendments of the con-
stitution of the United States; the man
ner of selecting Jurors nder section 204 Of
the Code OF Civil Procedure; the errors of
the trial court in selecting jurors, as we'll
as refusing to grant change of venue, and
10 cite the proprietors of certain news
papers for contempt pending the trial OF
appellant.
1t is shown by attorneys in behalf of the
State OF California and the appellee that
the writ OF habeas corpus cannot be m made
to serve the purpose OF a writ of error
and that the provisions of the Slate con-
slitution are not in conf CT NTH the con-
stitution of the United States, nor that
the provisions of tne penal code are in
conflict with any amendments OF the Fed
erai constitution.
In the brief upon motion to dismiss the
Acknowledgement states that, "the case at
bar is perversion OF the Federal laws rel
alive to the writ of habeas corpus. Itis
travesty upon the administration OF ius.
tlce anu gross abuse of the privileges
granted 10 and intended solely for those
who have at least some semblauce of a
meritorious claim to Federal intervention.
Not question is presented, not an issue
raised, that has not been squarely met
ard determined by this court against the
contention Of petitioner and that is not
governed by decisions familiar to every
lawyer in the country.
. at was Instituted solely for the purpose
of putting in operation section 766 of the
Revised Statutes of the United States.
thereby, upon the very fimsiest Of pre-
texts making tn Federal courts and the
Federal statutes instruments TO thwart and
delay the ordinary administration of the
criminal laws of the State of California.
'lts eifeci has been demoralzing to the
last degree and other convicted murderers
have followed the precedent thus estab-
lished. Since the institution OF these pro-
ceedings two other similar applications
have been made by .nen condemned by
the courts OF California 10 be hanged.
They were made on The same himsy pre-
texts and we're promptly denied. Yet, a.
in the case at bar, appeals were perfected
and the proper administration OF the
criminal laws of the State was checked.
ITO thus pervert justice in the name of
the law. to thus turn the courts and the
laws into mere instruments for delay. TO
thus thwart the execution of q Just SEN
tence upon not even the slightest pretext
of meriiorlous case-is nothing short
Of fraud and imposition upon the courts
''Tbe proceedings in the case on benalf
of defendant are discreditable to the ad-
ministration of justice. The courts are
being needlessly vexed forno possible pur-
pose except delay. The application ap-
pealed from was made upon prelexts mani
festly frivolous. and for which there can be
no possi bic excuse or Justification
The United States Supreme Court will
now be asked not to deny the motion, but
is so 10 affirm the order appealed from and
grant il.