The herald., 1897-02-14
A DEFENDANTS RIGHT
The Question Whv BartheInan Was Removed
Debated In Court

The Barthelman case was again up
in department one yesterday upon coun-
gel for the defendant asking for thirty
/ days within which to perfect the appeal.
The time having been granted, Mr..
| Davis took occasion, in quite an Incl
dental way, to comment upon the action
of the sheriff's office in spiriting Barthel-
man away to states prison within two
hours after sentence had been passed
Counsel reminded the court that the
section of the statute bearing upon the
matter is very clear. Section 1243 of the
Penal Code says; "An appeal to the
supreme court from a judgment of con-
viction stays the execution of judg-
ment in all capital cases, and in all other
cases upon fling with the clerk of the
| court in which the conviction was had,
a certificate of the judge of such court,
| or Of justice of the supreme court, that,
| in his opinion, there is probable cause
| for the appeal, but not otherwise
Counsel pointed that upon sentence
| having been passed upon Barthelman by
the court Attorney Shannon, who rep
! resented counsel in his absence. moved
the court for a stay of execution for
three days within which to file notice
of appeal. Right there the law. hav-
| ing been complied with, took effect, and
! the carrying out of the judgment was
| stopped. Inasmuch as the order of the
court that the defendant should be taken
by the sheriff to the states prison at San
| Quentin and handed over to the
warden and by him held, ETC., was part
and parcel of the judgment, it was diff
cult to understand by what warrant of
law the defendant had been removed.
Judge Smith stated that the sheriff
had come to him for advice regarding
the defendants removal, and he had re-
ferred him to the district attorneys Of
flee. He was not quite prepared to cay
how far the question whether a defend
ant be kept at San Quentin or in this
city, was affected by the law in the case
Deputy District Attorney McComas
explained that Sheriff Burr had asked
if he could take the defendant north, and
the office had told him he could. He
| had followed the precedent established
in Riverside county when the Cummings
! boys were taken north immediately
! after sentence.
Mr.. Davis failed to be convinced, and
explained that the case was one of mere
| philanthropy on his part. and a follow
| ing along the Zine Of his duty as an Off
Ger of the court, for there was not dol
lar in it for him. AT the same time he
desired to protect the interests of the
man whose life was in jeopardy, even
protect himself. In a nut shell. coun-
sells contention was that when Attorney
Shannon moved the court, the law set
forth in Section 1243 of the Penal Code
was invoked. the execution of the judg-
ment was thereupon stayed, and yet
within two hours the sheriff proceeded
| to partially execute the Judgment
| There the matter rested 1t is not
! likely that Mr.. Davis will need to con-
! fer with his client with regard to the ap-
peal to the supreme court, but it is not
| difficult to imagine a case where such
| thing might be very necessary. And
! such right as that inheres in the de-
| fendant Sheriff Burr was unwilling
| to saddle upon the county the additional
expense that a night and day death
watch" would have entailed, and it is
1 also reported that the sheriff also had a
dim suspicion that Barthelman con-
templated cheating the gallows if he
could, and he did not want to be kept
awake nights devising additional pre-
cautions against his prisoner committing
| suicide.
Clerk Logan forwarded yesterday to
/ Governor Budd the papers in the Bar
/ thelman case. There is a rather odd
/ provision-in in Section 1918. of the Penal
! Code, which reads as follows: THE
/ judge of the cuort in which conviction
requiring death is had, must. immedi-
dIe4S dlter the colIN lctloH, transmit 10
! the governor, by mail or otherwise, a
statement of the conviction and judg-
ment, and of the testimony given at the
| trial"
| Inasmuch as the pardoning power lies
| with the governor, and an appeal for
executive clemency is the last resort of
| a defendant under sentence of death,
after all sources Of relief have been ex-
hausted, it Is, perhaps, well that the
| governor be in a position to inform him
self as to the merits of the case 1T az
early date as possible AS the state
I enjoys an unenviable notoriety with re-
/ gard to murders committed the chief
executive must be kept well supplied
with vast mass if lugubrious litera-
ture. The transcript of testimony for
, Warded yesterday by Wells, Fargos
I Express was made up of 543 closely
! typewriter pages.