The record-union., 1897-11-12
THE MAN OF DESTINY.
Theodore Durrant is Given Another Indefi=
mite Lease of Life

of probable cause to stay proceedings
under an order of the Superior Court fix
ing a day for the execution of the judg-
ment of death heretofore pronounced
against appellant.
1t is made to appear from the papers
on file on this appeal, and presented to
us in support of this application, that
appellant having been brought before
the Superior Court upon November ~,
1897, it was by that tribunal ordered
that sentence of death be executed up
on him two days thereafter. to wit, up
on Friday, November y, 1897.
In answer to the statutory demand
made upon appellant to show legal cause
why the order should not be made, he
by his counsel offered evidence showing
that he had appealed to the Supreme
Court Of the United States from an order
of the Circuit Court of the Ninth Judi
clal Circuit refusing his application for
writ of habeas curpus, and introduc-
ing in evidence the records of the Circuit
Court tending to show that this appeal
was still pending and undecided. Such
an appeal, while pending, stays the
hands of the State and of the State au-
thorities. Gu. S. Revised Stat, Secs.
763, 764. 765 and 766: in re Shibuya
Jugiro, 40 U. S., 291)
Against the evidence thus offered no
counter showing whatever was made.
It thus having been established that
the appeal is pending, it will be pre-
sumed to be still pending until the pre-
sumption is legally overcome. &C. c. P.
Sec. 1868, sub. 32) Therefore, SO far
as the record now before us discloses,
the defendant was subjected to proceed
ings in a matter sub judice before the
Supreme Court of the United States.
| Such proceedings are null and void.
Gu. S. Revised Stat, Sec. 1861
The question here presented differs
| from that considered in the Jugiro case,
supra. In the latter case Jugiro's ap-
peal from an order of the Circuit Court
denying his application for writ of
habeas corpus had been decided ad-
versely to him upon November "a, 1896.
Upon December 1, 1890, the mandate of
the Supreme Court not having been re-
ceived, he was brought before the court
of Oyer and Terminer in New York.
There by order day was fixed for his
execution. Upon a second appeal under
habeas corpus proceedings the conten-
of the United States that this order of
the Court of Oyer and Terminer was
absolutely void.
The Supreme Court of the United
States, stating that it took judicial
knowledge of its own decisions, and that
| therefore it itself knew that the former
decision had become final, declaring
that, while sit would have been more
appropriate and orderly if the State
court had deferred final action until our
mandate was issued and fled" it did
not feel authorized to say that the
order of the New York court was abSo-
lutely void
| In the present case the question is
not: What judicial knowledge has the
Supreme Court of the United States of
its own decisions, but it is: What legal
| evidence was adduced before the Judge
of the Superior Court to justify him in
pronouncing the order In question after
showing by appellant that his appeal
staying the hands of the State authori-
! ties was still pending? If he had no
evidence warranting his act (and none
appears in the record presented) then
! the order is certainly erroneous, and as
such reversible upon this appeal; while
| in the Jugiro case mere matters of er-
ror could not be and We're not consid-
! cred.
There is yet another and Independent
consideration calling for the issuance
of the certificate applied for. The order
here under consideration is an order
made after final judgment. From such
an order an appeal to this court lies.
! (Penal Code, Sec. 1919 FTom the date
Of the making of the order the appel
| liant is guaranteed by the law ten days
! in which to prepare and present his bill
! of exceptions. Penal Code, Sec. 11I4.) }
/ 1t is not for one moment to be contem-
plated that this right, as secured to a
defendant. may be cut down and de-
stroyed by an order of court fixing the
date of execution of defendant within
/ this period. Under the law of this State
/ II is a violation Of a defendants rights
/ and a gross abuse of discretion so to
shorten the time For these reasons a
certificate of probable cause will issue.
HENSHAW, J.
/ We concur: Temple, j.; Van Fleet,
j. Harrison, j.; Beatty, c. j.; McFar-
! land. j.