The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1897-06-05
THE ATTORNEY GENERAL.
His Reasons for Delaying S. D. Nor
den'S Execution.
Text of the Opinion Received Yes
terday by Warden Auil at
Folsom.

Following are the chief points Of the
letter sent yesterday by Attorney-Gen-
eral Fitzgerald to Warden Aull advis-
ing him not to hang the convicted train
wrecker, Worden, and giving him the
legal reasons for his advice:
Sections 763, 764 and T65 of the Re-
vised Statutes of the United States pre-
scribe the instances in which appeals
may be taken in habeas corpus cases,
which are: From the final decision Of
any Court, Justice or Judge inferior to
the Circuit Court, upon an application
for writ of habeas corpus or upon such
writ when issued (Section 1853, and
from the final decision of the Circuit
Court upon such an application, or upon
such writ when issued. (Section I64)
Section 766 Of the Revised Statutes Of
the United States, as finally amended
by an Act of Congress approved March
3, 1898, is as follows:
Pending the proceeding or appeal in
the cases mentioned in the three pre-
ceding sections and until final judgment
therein, and after final judgment
of discharge. any proceeding against
the person so imprisoned or confined
or restrained of his liberty, in any State
court, or by or under the authority of
any State, for any matter so heard and
determined, or in process Of being heard
and determined, under such writ of ha-
beas corpus. shall be deemed null and
void; provided, that no such appeal shall
be had or allowed after six months from
the date of the judgment or order COM
planned Of"
The three preceding sections re
20 IN he cd
tions 763, 764 and 765, prescribing the
instances in which appeals in cases Of
this character may be taken.
In the case of in re Shibuya Jugiro,
140, L. S. pol Justice Harland, who de-
livered the opinion of the Supreme Court
of the United States. in speaking of the
above quoted Section 766, said:
"Of the object OF the statute there
can be no doubt 1t was-in cases
where the applicant was held in Gus
tody under the authority of State
court or by the authority of a State
to stay the hands of such court or State,
while the question as to whether his
detention was in violation Of the Con-
stitution, laws or treaties of the United
States was being examined by the courts
State Court in the case of the other man
Oh the OUIOn LdfllS Jul lSuiNlioh III LIZ
premises But the jurisdiction of the
State Court in the case specified is re-
strained only pending the proceedings
in the courts of the United tSates and
until final Judgment therein" COP. p.
295)
While. therefore, I am firmly con-
WINGED that the applications for these
writs Of habeas corpus made on behalf
of Worden are wholly without merit
and that the orders of the District and
Circuit Courts in denying the appiica-
ton will be promptly affirmed when pre-
scented to the courts to which the APP
peals are taken, nevertheless, 1 am of
the opinion that in view of the provis-
ions of Section 766 of the Revised
Statutes, and in view of the construc-
ton given by the Supreme Court of the
United States to that section it would
not be safe for you to proceed with the
execution Of Worden until the final de-
termination of the appeals in question
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