The San Francisco call., 1897-09-03
His Attorneys Follow the
Precedent Of the Dur
rant Case.
They Go Before Judge Morrow
and Appeal to the Su-
preme Court.
More Than Twenty Similar Gases
Have Been Sent Up From
Southern States.

Harvey Allender, who was to be HANGED
to-day, has been, or will be, reprieved in
the same manner and by the same pro-
cedure as that adopted N the cases of
Durrant, Worden and Hill.
Yesterday Attorney Frank Shaw. with
Thomas Allender, father of the prisoner.
presented in the United States Crcnit
Court petition for writ of habeas chr,
pus on grounds similar to those men
toned in the Durrant petition, with an
additional ground In the matter of the
proof of insanity.
1t was alleged in the petition that the
prisoner was restrained of his liberty and
was about to be hanged without due pro.
cess of law and in disregard of his riphts
as citizen. The first point is that Aien-
der was proceeded against by information
without preliminary examination bv an
i1fe rior or com mitting tri bunal In other
words, that the committing magistrate
had no jurisdiction. 1t Is alleged that the
courts of California deny 10 persons
within its jurisdiction the equal protection
of the law providing for an inquiry and
indictment by the Grand Jury of all per-
sons charged with infamous crimes and
particularly with capital offenses.
1t is contended that prosecution by in
formation is In conflict with and in viola
tion of the fourteenth amendment of the
constitution of the United States; that IL
is within the arbitrary discretion of and
power of the District Attorney to file or
not to file an information against the
accused, and that such discretion denies
to persons in California accused of capital
offenses the equal protection of the con-
stitution providing for Indictment by
Grand Jury.
Thus far the petition follows the lines
laid down in the Durrant peLltlon, but
new point is made with relation to the
procedure to be followed when insanity Is
pleaded as defense.
That portion of the Jude e's charge to
the jury on the defense OF the plea of in
sanity is quoted and objected to:
I therefore instruct you that the burden of
proving that the defendant was in sane at the
time of the alleged nom micide is upon him,
and the presumptio that he was sane and in
his right mind, and able to discern right from
wrong, must prevail until he shows by pre-
ponderance OF evidence that such presump.
tion is false.
The petition recites that the Supreme
Court of the State of California upheld
the instruction, Notwithstanding the fact
that the humanity OF all law requires that
the prosecution in every case of public
offense must prove the defendant guilty
Dcy OUO q ItaSOHdDI6 anu therefore
upon the defense of insanity the defend
ant was deprived of the law OF reasonable
doubt"
Judge Morrow denied the application
for the writ, and on a bond being given
for $500 signed the citation. The neces-
sary papers were placed il the hands of
Deputy United States Marshal Gallagher,
who proceeded to the penitentiary at San
Quentin last night and served them upon
Warden Hale. Ghe Warden said he would
take The first boat in the morning and
come to this City for consultation with
Attorney General Fitzgerald. 1t is be-
lieved that the esult will be he same as
in the other cases, and that the execution
will be postponed to await the action of
the Supreme Court of the: United States.
Since the appeal in the Durrant case
many other States are following the same
course, and the prospects are that
there will be full calendar of convicted
and sentenced murderers awaiting the de-
cision of that august body.
1t is said that no less than twenty MUIR
der cases have been appealed to the United
States Supreme Court from the Southern
States alone, and there are lawyers who
predict that som mething heavy will drop
when the court reaches the first on the List,
which Is that OF Durrapt. The decision of
the court will seltle the matter for all
tine, and it is not at all likely that there
will be any more appeals on similar
grounds when the court has spoken on
the subject. T.