The San Francisco call., 1897-04-11
in the Courtroom Of
Part tn Time in Court the Prisoner AmusdH Hmsfy

fendant at this proceeding" continued
Mr.. Barnes. while l would be the last
man to urge the court to proceed with
undue haste, yet l feel it my duty to in
sist that there shall be no further delay in
proceeding with the cause at bar"
Mr. Deuprey persisted. He said he was
not asking anything extraordinary. This
was a matter where a mans lie was at
stake. That man was entitled in law and
justice to the assistance of his counsel at
every stage of the proceedings. Here 1t
was proposed to deprive him of that ad-
vantage by hurrying the passing OF sem
tence. The delay of week was most
reasonable. The rights of the prose ecution
would not be impaired and the defendant
would be given but fair chance to make
the best defense that is allowed to him
under the law.
.'As l understand the law" said Judge
Bahrs, 1.-The defendant has exhausted all
the remedies that are known to our juris-
prudence. In my judgment the showing
made is not sufficient and l cannot grant
a continuance"
Still Mr.. Deuprey continued to argue.
He said he thought he was entitled TO an
opportunity to show TO Judge Banrs that
the Judgment pronounced by ex-Judge
Murphy in this case was not a JUDI ment
that any court had q light to make. Under
section 100 of the Penal Code The court
had authority to pass sentence that tn
defendant should suffer death or lmpris-
onment in the State prison, but that the
pre- etended judgment rendered by the trial
court, the original judgment on which
judgment is now proposed to be pro-
nounced, attempted 10 lnt1ict the punish
ment of both Imprisonment and execu-
ton. The jury that returned the verdict
had right TO intilct either imprisonment
or death, but the court had no authority
to add to that verdict, which prescribed
death, and intiict on the defendant the
additional indignity of the stripes of
felou's garD.
There was no authority, Mr.. Deuprey
insisted, for the addition which the trial
court had made to the verdict of the jAry
that the defendant should be closely con-
fined in the State prison, because there
was no warrant in law for any such order.
1t was an intrenchment on the duties OF
the Sheriff and the Warden of the Sta lie
prison. The court had mpted to legis-
late and SO had issued double judgment,
which in fact vitiated the act altogether.
For that reason the pretended judgment
signed by Judge Murphy was no judgment
in law and in fact, and on tnat pretended
judgment no judgment can now, or at
any time, be pronounced. The verdict of
the jury may possibly stand, but on that
verdict the proceeding of the court must
be based. The Judge had no right to legis-
late and add to the punishment that the
verdict directed should be inflicted.
Judge Bahrs asked: HAS not that
judgment been sustained by the Supreme
Cou-tP"
Mr.. Deuprey replied that the judgment
had been sustained only as to the pro-
cedure in the cese during trial, but not as
to the double sentence as uttered by the
trial court. The double penalty had
vitiated the judgment and it must fall.
Judge Banrs overruled MIR. Deuprey's
objections and said: Theodore Durrant,
stand up."
As the prisoner did so Mr.. Deuprey in
terposed another objection. He said that
the facts of the case had not been inquired
into by the court or any officer of the
court as contemplated and required BY
the law.
This objection was overruled and Mr..
Deuprey, having asked the clerk 10 enter
the defendants exception to the rulings
OF the court in all the matters submitted,
took his seat, while Judge Banrs pro-
nounced sentence on the doomed man
and liked the day OF execution, as previ-
onsly set forth in these columns.
Quick as fash Mr.. Deurrey was on his
feet. He saw that Judge Bahrs had fol-
lowed exactly the words use. by exJudge
Murphy in passing sentence, thus pro-
viding for what he termed double pun
ishment and he moved to strike out all
that part of the judgment which related
TO close confinement in the State prison.