The San Francisco call., 1897-06-03

the Supreme Court, but allowed it to be
taken 10 the Court of Appeals
If the Court of Appeals declines to issue
the writ there will be time in the DurIant
case to take the case to the Supreme Court
by writ OF certiorari.
Judge Sawyer held in the case of Sun
Hung, August "a. 1885, reported in the
oath Federal Reporter, that the right of
appeal to the Supreme Court in habeas
corpus cases is absolute and in no manner
dependent upon the discretion of the
judge to allow or deny"
The attorneys who are fighting for Dur
rant, aided by Charles A. Garter, rely on
a late United States Supreme Court de-
cision for relief by certlorai.
- In the case of Lau On Ben against the
United States, reported in The 144 United
States, October. 1891, it was held that the
judgment of the United States Court of
Appeals in habeas corpus cases is review
able by the Supreme Court OF the United
States. The court says:
The judgment or decree of the Circuit
Court of Appeals in case of habeas
corpus is renewable by this court upon
certiorari when questions of gravity and
i'm mportance are involved" "
In this case the United States Supreme
Court reversed the decision OF the United
States Circuit Court of Appeals for the
Ninth Circuit. and gave directions to dis
charge the prisoner from custody
II any bitches should arise regarding
the writ of certlorari in the Durrant case
it is proba ble that one of the Justices of
the Supreme Court of the United States
-
ing the execution pending a full investi-
cation of the law by the full court.
Attorneys Boerdman, Garter and Deu-
prey appeared before Judges Gilbert and
Morrow in the Circuit Court yesterday
and presented their petition for a writ OF
habeas corpus. They relied on the invalI-
di:y of the proceedings against Durrant
by information, as foreshadowed exclu-
sively by THE CALL and the awarding of
the writ was refused. Steps will be taken
10 perfect the appeal to-day. and it is un-
derstOod that ex-District Attorney Garter
will 60 to Washington to-day to apply to
one of the Supreme Justices for super
sedeas to stay the execution of Durrant.
The Attorney Generals office had re-
ceived no notice of the appeal in the Wor-
den case mp to late hour last night. At
torney Monteith had not had the appeal
| entered in the minutes of the clerks re-
cord and until the appeal is thus set go
ing there is no Federal bar to the execu-
ton.
If Attorney Monteith should to-day per-
feet his appeal and have the Attorney
General notified that it is pending, it is
generally believed that the States chief
legal adviser will either ask the Governor
to grant a respite or that he will of his
own motion advise Warden Aull to stay
the execution until the appeal is finally
adiudicated by the appellate court.
1t is well known that the Attorney
General has often decided mems fates be-
fore. In several cases he advised Warden
Hale to hang men in spite OF threats of
damage suits by relatives, but the Attor.
ney- General never before had a Federal
statute and a iurigo case standing like q
stone wall in his path.
1t is understood that if either OF the
doomed men should be hanged before a
final adjudication of the appeals in habea.
corpus their relatives will bring suits for
damages against the penitentiary war
uens. The attorneys for Durrant are
strong in their demands that nothing be
done in the Lamont case until a trial of
their client for the murder of Minnie
Williams.