The San Francisco call., 1897-06-09
DURRANT
l>MAY STILL
DIE FRIDAY
Warden Hale Has Not
Decided Not to Hang
Him.
ATTORNEY GENERAL rs
SILENT.
No Definite Instructions Yet
Given to the Prison
Official.
THE CASE BECOMING a MAJ
OF LAW.
The Condemned Mans Attorneys
Manifest Symptoms of Alarm for
Their Clients Position.
The CASE BECOMING a MAI
OF LAW.
The Condemned Mans Attorneys
Manifest Symptoms of Alarm for
Their Clients Position.

Durrant's fate is not settled BY any
means. 1t is within the range of proba-
ollity that he may hang on / Siday next,
despite the appeal now pen ding in the
Federal courts. At any rate, Warden Hale
has not as yet made up his mind not to
carry out the sentence on the day fixed oy
the State courts, and back of it all Is
new chapter in Federal law, which has
changed the mplexion OF affairs entire
ly. AS a result, Durrants attorneys are
considerably alarmed.
The attorneys for the condemned man
now rely wholly on the application for
writ of habeas corpus, which they hope to
make to the Supreme Court at Washing
ton in August. The fact that the Circuit
Court of Appeals, while denying the writ,
allowed an appeal the lawyers have con-
strued as negatlving the decree of death
of the State courts for the present. At
torney- General Fitzgerald was at first
inclined to view things from this stand
point Now he is in doub,.
If Warden Hale should persist in hanging
Durrant on Friday next he might SIM
pity the legal Wrangle a great DEAL The
condemned man out of the way the Su-
preme Court would be called upon to pass
upon "moot' case. That is one where
the person or thing in whose interest the
litigation is brought has disappeared, or
gone bey ond the jurisdiction OF the court
Tne court would then be asked to issue
a writ of release for a man dead, or at
at least without the pale of any relief it
could afford.
This paradox has been presented to the
court before, and. as it happens, it was in
connection with one of series of cases
that gave Durrant's attorneys their cue 10
the present proceedings. 1t was Attorney
Thomas P Riordan who is entitled to the
credit OF providing the precedent. An ap-
peal was taken by him to The Supreme
Court to prevent the deportation of China
men under the Geary act
The appeal reached the court in due
time, but in the meantime the MongoIian
was transported, and there ended the
whole matter, for the Judges were Off
cially notified when the case was called
that the subject for il no LONGER existed.
The action of the customs officials in this
instance was a clear violation of the sec
ton of the United States statutes which
declares that pending an appeal the Gus
tody of a prisoner shall! not be interfered
with.
But in Warden Hale's case it is a cues.
ton, and fine one at that, if the carrying
out of the sentence of the execution would
be an interference with the custody of
the prisoner" Durrant was in the death
chamber when the Federal courts were in
voked in his behalf. Ii matters were
allowed to take their course, or his Gus
tody to run to its natural end, ne gaIiows
would claim him as a victim on Friday.
The death of the condemned man then.
some lawyers assume, would not be an
interference with his custody at all
but strict adherence to the letter of the
Federal law. In Worden's case the United
States Circuit Court refused an order for
a stay OF execution, but granted an ap-
peal from the refusal for q writ of GER
tiorari. Attorneys take various meanings
from this action. Some say that this re-
fusal per Sc would be authority for the
State officers to carry out the instructions
of State courts.
Had Warden Aull proceeded with Wor-
den's death these same people say the
matter would have died with him.
The more lawyers get in the case the
more elastic becomes the law. and it may
be stretched to hang Durrant as well as to
save him. The prisoners attorneys de-
clare that if Warden Hale should execute
Durrant Friday he would be guilty of
legal murder--whatever that may be. At
torney- General Fitzgerald thinks directly
the opposite.
At most he believes the Warden would
be liable for contempt of court; put once
again the Interpretation of that phrase
"shaIl not interfere with the custody of
the prisoner" might be construed to JUS
tify the action.
Warden Hale and Attorney.General
Fitzgerald held long conference yester-
day. Both arc reticent concerning II, and