The San Francisco call., 1897-06-09

both refuse to give any positive answer to
the question whether Durrant will be
hanged Friday.
Moreover, the Attorney General has not
yet given the Warden any advice that
would definitely decide the matteH This,
in itself, is a very sigtinifcaauiact. for all
day yesterday the Attorney-General was
looking up the Federal law relating to the
issue in the proposed appeal. An inter.
Fogation by Durrants attorneys met with
no answer from the Attorney General.
Warden Hale and Fitzgerald will con-
fer again to-day, and probably reach some
definite conclusion. There are those who
confidently say that the Attorney General
is almost convinced that he would be
justified in ordering that the law be al
lowed to take its course.
He might give this advice for strategical
purposes. To save their client Durrants
attorneys would then have recourse to an
application for an injunction to the Fed
eTal courts. If this we're denied new
puzzle bobs US inasmuch as the action in
itself would be a positive, although in
direct admonition to the Warden to pro.
Ceed with his duties.
ALI in all the case is the most complex
possibly in the history of criminal law in
the United States. In fact 1t is a maze in
which the lawyers are losing themselves.
Durrant is still in the condemned cell,
where he was removed from the death
chamber on Saturday last. 1t is not neces-
sary that deathwatch should be put on
condemned man. This proceeding is at
the option of the Warden. Durrant might
be taken from his present quarters TO the
scaffod direct. His mother will visit the
prison to-day.
1t is the opinion of all who have paid
any attention TO the Developments of the
last three or four days that there is some
thing very important in progress. It is
well known that Attorney General Fitz-
gerald looks upon the Federal habeas
corpus law as a gigantic farce. He would
gladly clrcumvent it if he could.
His assistants are searching the Libraries
for precedent, and there are whispers
that men have been hanged with impunity
pending appeals to the highest Federal
tribunal notably in a few New York cases
There was rumor in legal circles that
the Attorney General, a represen ative of
the Governor and the Federal Judges have
had one or two interviews on the status of
the Durrant case since the application for
writ of habeas corpus. The rumor also
goes 10 the effect that eminent le, ,al talent
in Washington has been consulted as TO
the probable effect of the hanging of Dur
rant pending the appeal from the refusal
to grant the writ in the Circuit Court
All that is definitely known is that At
torney-General Fitzgerald's entire office
force is busy. They are trying hard 10
find some loopbole by which the States
Warden may hang the States great crimi-
nal without getting into trouble.
number of interesting legal questions
arise concerning the predicament Warden
Hale would be in if he should hang Dur
rant pending the appeal. The United
States statutes at most declare that the
proceedings would be null and void, but
what good would that consolation do
Durrant and how would any United States
court punish the offender?
There is no Federal law against murder,
unless the crime be committed on the
high seas, in United States courtrooms
and on certain lands specified, so there is
probably no United States statute under
which the Warden could be prosecuted for
the murder of Durrant, the jurisdiction in
such cases being relegated to the State
courts.
But the State courts could not take cog
nizance that a crime had been committed.
since the execution would be in strict
compliance with the mandates of the
State trial and appellate courts.
1t is believed that if the hanging takes
place on Friday it Will be pursuant to
thoroukh advice with eminent Federal
lawyers, il not after a semi-officia intima-
tion that the Justices of the Supreme Court
would not Interfere with the ruling of the
Circuit Judges.
1t has been discovered by the attorneys
OF the defense, however, that the famous
Jugiro case that gave them their victory
has been strongly affirmed recently in a
decision by the Supreme Court of the
United States reported in a late volume.
The decision referred to is McKane VS.
Dunston, in the 153 United States Re-
ports 1t gives hope for future appeals.
Another point that has not been dis
cussed very fully is that if the Supreme
Court should say that the lower court
should have granted the writ there will be
another chance of appeal from the de-
clsIon of the lower court. If the lowers
court remands the prisoner after issue of
the writs an appeal from shat decision will
lie, thus giving two appeals in one pro-
ceeding.