The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1897-12-02

torney General Garter, he read the petit
ton for the writ of habeas corpus on be-
half of Murderer Eblnks. The gist of the
application was that after thanks had
appealed to the United States Supreme
Court, which appeal is now pending, he
rad been taken back 10 the Superior
Court at San Diego and there rescntenced
to death.
Deputy Attorney General Carter adj
mitted that such was the fact and Mr..
Deuprey informed the court that last
Tuesday evening an application had been
flied in the State Supreme Court for a
writ of probable cause.
Mr.. Carter, while admitting the PEN
dency OF the appeal to the United States
Supreme Court contended that the writ
OF habeas corpus went only to the ques-
ton of the custody of the petitioner 1t
was not alleged in the application that
the custody Of Ebanks mad been changed
since the appeal on his behalf had teen
taken to the Supreme Court of the United
STATES.
Mr.. Deuprey main tanned that Under the
circumstances the Warden had no legal
right to hold Ebanks, whereupon Judge
de Haven inquired whether Mr.. Deuprey
wanted the court to turn MIR. banks loose
upon the community. The attorney re-
Dlitu LDdI SuCH was not MS QeSlTes Ills
contention was that his client was not
legally in the custody of Warden Hale.
The court stated that il supposed that
the real question at issue was whether the
Warden would have q RICH: to hang the
petitioner while the matter was on appeal
before the Supreme Court OF the I'm ted
States.
"Yes," replied Mr. Deuprey.
The court thereupon ordered the writ TO
issue ana fixed IL clock this morning as
the time when the Warden should pro-
duce the prisoner before the court. A
suggestion. was thrown out TO Mr.. Deu-
prey that he should present himself pre-
pared TO argue the question as TO what
disposition should be made of the petit
toner.
Ii Judge de Haven should decide this
morning that Warden Hale is not the
proper custodian of the prisoner, the
execution cannot take place, and the pris-
oner will be placed in GU touy of the
Sheriff OF San Diego County. Ii the de-
clsion should be that the appeal TO the
Supreme Court does not stay the execu-
ton, the proceedings in The State Supreme
Court will be relied upon to ada 10 the
longevity OF the prisoner, and the order OF
Judge de Haven will form the basis OF
another appeal to the United States SUI
preme Court.
LaEe yesterday afternoon the Justices of
the following order in the case of J. J.
Ebanks. the San Diego murderer, whose
execution was ordered for tomorrow:
We, the undersigned Justices of the Supreme
Court OF the State OF California do hereby GER
tify that in our opinion there is probab e
cause for the appeal of the above-named de-
fendant from the order of the Superior Court
OF San Diego made and entered on, to w.t. the
9th day OF November, 1897, commanding the
Warden OF the State PRISON at San Quentin to
put said defendant 10 death on Friday De-
cembcr 3, 1897. and all proceedings upon said
order are STAYED.
Beatty. c. j.; Temple, j.; Harrison, j.; Hen
shaw, J.
This order was made on the strength O.
an appe al made by the murderer's attor-
ney on tuesday for writ of probable
cause. The petition recIted that Ehanks
had already appealed to the United States
Supreme Court from an order of the
United States District Court denying a
writ OF habeas corpus. and that until that
matter was settled stay of proceedings
should be granted, and The action OF the
justices showed that they though mt that il
should.