The San Francisco call., 1897-08-28
HILL SAVED
FOR A Time
An Appeal Perfected to the
United States Supreme
Court.
Judge De Haven Denied the Ap-
plication for Habeas
Corpus.
Opinion of the Attorney-General as
to the Legal Procedure
Adopted.

Ben Hill, who shot his wife to death lin
Oakland, because she had taunted him
with ber own shame and perfidy, was not
hanged yesterday although the gallows
and all its CHASTITY paraphernalia were
ready.
His lawyers, by adopting the proceed ure
followed in the Durrant case, have been
able to stay the execution for some N onths
at least by perfecting an appeal 10 the
| Supreme Court of the United States. On
Thursday afternoon Eugene Deuprey, w.
w. Foote and NJ. C. Chapm called upon
United States Circuit Judge Morrow in his
cham bers after the adjournment Of court
| and applied for a writ of habeas corpus
Judge Morrow replied that he would not
grant the writ because the facts stated in
the petition were not sufficient. Then the
| attorneys asked him to grant them an ap-
peal to the Supreme Court of the United
| States.
Judge Morrow informed. the lawyers
that an order of Judge sitting in cham
bers could not be appealed from; that
| the order to be appealab BILE must be made
| in open court. The attorneys asked that
he open his court for the purpose OF deny
ing the application for tine writ. The
Judge refused, because he had already ad-
journed his court for the day and he
could not legally reopen it.
Then the attorneys went to Judge de
Haven md he denied the application for
the writ, and in order to stay the execu-
tion OF Hill untll the necessary papers
could be prepared he signed the necessary
papers for that purpose. These were
served upon Warden Hale before mid
| night.
Yesterday morning Warden Hale came
over TO this City and called upon Attorney
General Fitzgerald. In the meantime,
certain kilograms had passed.
The following are copies of kilograms
| which passed between the persons named
| therein in reference to the matter:
SANTA CRUZ CAL, Aug 26
To Hon. W. r. Fitzgerald, Attorney Gene al
s226 California Street, San Francisco: Denied
application to commute Hill. Should new
facts be submitted TO justify further hearing,
would legal complications result from re-
prleye? Answer. WILLIAM I. JETER.
SAN FRANCISCO Aug 26
To Hon. ". T. Jeter, Lieutendnt and Acting
G0lerROr Of the State of California, Santa Cruz
Cal: l know OF no legal Complications tina t
could arise from the reprieve OF HUI unless it
be the opportunity which such action would
furnish 10 further delay the execution of his
sentence beyond the day to which he should be
| reprieved by resort to the Federal courts AS
these courts in San Francisco viii not con-
vene again until tomorrow at IL o'clock his
execution can only be stayed by your action.
w. F. FITZGERALD Attorney-General
SAN FRANCISCO. Aug 27, 1897
To ". z. Hale Warden San Quentin Prison,
San Quentin, CdL am of the opinion that the
appeal from the order OF the United States
District Judge made in cham ber denying the
application of Benjamin Hill for writ of
ha beas corpus does not stay the execution of
the sentence of said Hill. have mailed TO
you written opinions giving my reasons.
The following is the opinion of the
Attorney-Gener to Warden Hale:
Hon. ". E. Hale, Warden of San Quentin
Prison. San Quentin, CGl.-DEAR SIR: am in
receipt of your request for opinion as TO
whether or not the appeal in the matter of the
application OF Ben jamin Hill tor writ of
habeas corpus made 10 the Honorable J. ].
de Haven, United States District Judge, at his
cham bers, which application was b. him
denied, and from the denial of which the
attempted appeal in question is taken, oper-
ates as stay OF execution OF the sentence OF
l am of the opinion that the appeal from
the order in question does not operate as a
stay of execution. The appeal purports to be
taken direct 10 the Supreme Court of the
United States. All appeals to that court from
the inferior Federal tribunals are regulated
solely by section of the act OF Congress OF
March g. 1891, establishing the United States
Circuit Court OF Appeals supplement 10 the
Revised Statutes OF the United States, Vol l,
Second Edition, psge 903). which section pro-
VldeS, among Otner tnlngs, 'InaL Appeals or
writs of error may be taken from the District
Courts, or from existing Circuit Courts. direct
to the Supreme Court in the following cases"
Among those enume Grated, the ones that are or
may be applicab bic TO this case are as follows:
I'm the cases of conviction OF capital
crime"
ain any case that involves the construction
or appacation of the constitution of the
Uniteu States"
"Iu any case in which the constitut ton or
lew of a State Is claimed to be in contraVen-
ZION of the constitution of the United States."
IL viii thus be seen that no appellate juris-
diction whatever is conferred upon the Su-
preme Court of the United States from an Or
Irict Court in chambers. The appeal lies only
from an order of the court ITSELF and not
from an order of the Judge.
Had an order denying the application been
made by either the United States District or
Circuit Courts, done in the Durrant
and Worden cases, and not by the District
Judge in his chambers, as was done i'll this
case, then an appeal from such order would
have operated as a stay of execution under
the provisions of section 766 of the Revised
Statutes of the United States. Respectfully,
w. F. FITzGERALD, Attorney-General
Yesterday morning Attorneys Chapman
and Deuprey appeared in Judge de
Haven's court and made the application
all over again in open court, in order to
avoid any question as to the legality OF
the proce eedlng. The application was
denied, leave to appeal was granted and
Warden Hale was at once served with the
necessary papers staying the execution.