The record-union., 1897-12-30
Engaged in Perfecting Another Appeal to
the State Supreme Court.
Should the Decision be Adverse to
the Condemned Man, an App1i-
cation for a Writ of Error Will
be Made Direct to the United
States Supreme Court-Judge
Wallace Purges Ex-Juror Smyth
of Contempt.

SAN FRANCISCO, Dec. 29.-The at
torneys for w. H. 7. Durrant will make
another attempt TO gain time, and are
at present engaged in perfecting an
other appeal to the Supreme Court of
California. Should their efforts to
save the convicted murderer from the
gallows again fail in this direction, an
appeal will be taken to the Supreme
Court of the United States.
The new appeal that is to be filed in
the State Supreme Court is based on
the exceptions taken by attorneys
Boardman and Deuprey before Superior
Judge Bahrs when Durrant was sem
fenced the last time. Judge Bahrs last
Friday settled the bill of exceptions,
and the transcript is now in the hands
of the printer. AS soon as the docu-
ment is ready it will be filed in the Su-
preme Court, and an appeal taken.
The principal objections upon which
the appeal Will be based are that Judge
Bahrs had no jurisdiction in sentenc-
ing DulTant to be executed, and that
in so doing his honor exceeded his au-
thority and usurped a power not le-
gally within his province.
Attorneys Boardman and Dickinson
contend that the case originally was in
another department of the Superior
Court, and no part of it should ever
have been heard by Judge Bahrs. Be-
sides this, they contend that he is pref
udiced against the defendant.
In the new appeal to the Supreme
Court, Attorney Boardman will seek
to raise a Federal question. 1t has
already been presented in the Federal
courts, but he will seek to impress the
State jurists with its Importance. The
attorney Will seek to show that because
Durrant was never indicted by a Grand
Jury. but that he was merely proceeded
against by information. the constitu-
tional rights of the prisoner were in
fringed.
Should the State Supreme Court rem
der a decision adverse to Durrant, then
an application for writ of error will
be made direct to the United States
Supreme Court Mr.. Boardman feels
very hopeful that by this method Of
procedure he may get the case before
the highest tribunal of this land. He
takes a hint from the decision of United
States Judge De Haven in the Bennett
case. His honor indicated that an ap-
plicatfon for a writ of habeas corpus
was not the proper way to proceed, but
that no doubt writ of error would be
granted.
SMYTH PURGED OF CONTEMPT.
SAN FRANCISCO, Dec. 29.-Judge
Wallace this afternoon purged ex-iuror
Horace Smyth of contempt, and ordered
the proceedings against him dismissed.
When the case was called Attorney
Dickinson arose and asked for contin-
uance until Monday next. He stated
that he had received from a trust
worthy source a letter to the effect that
Mr. Smyth received the information al
legged in the complaint during the pro-
gress of the Durrant case, and that the
fact could be established beyond
doubt. He therefore asked for furt her
time.
Judge Wallace said he had no author
ity to grant postponement on such a
showing, whereupon Attorney Foote
said that his side had further proof Of
the truth of the statement contained in
the letter.
Judge Wallace asked for the letter,
and, after reading it, declined to allow
further postponement. He then
asked Attorney Foote If he desired 10
continue his cross-examination of juror
Smyth The attorney announced rath-
er sharply that he did not.
Judge Wallace, with a few comments
on the poor showing made against jur-
or Smyth, thereupon ordered the case
dismissed.