The San Francisco call., 1897-11-03
DURRANT'S
APPEAL TO
Be FUTILE
California Officers of
the Opinion 1t Will
Be Dismissed.
WARDEN HALE ON
THE WAY HON
Returning to San Quentin to
Be Ready for Any
"Emergency."
SUPREME COURT DECISION
EXPECTED MONDAY.
No Time VIII Be Lost In Executing
the BeIfry Murderer After
ReSentence.
Returning to San Quentin to
Be Ready for Any
"Emergency."
SUPREME COURT DECISION
EXPECTED MONDAY.
No Time viii Be Lost In Executing
the BeIfry Murderer After
ReSentenCe.
Special Dispatch to THE CALL
CALL OFFICE, RIGGS HOUSE /
WASHINGTON d. c., Nov.


WASHINGTON, D. c., Nov. 2.
Warden Hale of San Quentin peniten-
tiary left rather Unexpectedly for home
this afternoon, although he stated to THE
CALL cores pondent a day or two ago that
he would remain here until the Durrant
case was decided by The Supre me Court.
He said to-day that Judge Fitzgerald
thought he had better get back to be
ready for any emergency"
His sudden departurs, coupled with
the confident and most positive tone
which Attorney-General Fitzgerald peaks
of the Supreme Courts coming decision
in the Durrant case. creates a suspicion
which amounts to belief that Fitzgerald
ard Warden Hale have made up their
minds the Supreme Court will dismiss
Durrant's appeal on next Monday. Fitz-
gerald said 10 THE CALL correspondent to-
light that he 'wou!d not be surprised If
the decision was handed down ON next
Monday"
OF course neither Fitzgerald nor Warden
II ale has any means OF anticipating a de-
cision of the court, and the proba blities
are that their prediction of a decision
against Durrant is based upon Judge
Fiizgerald's confidencs as a lawyer that
the court cannot decide otherwise. The
Judge said tonight that it would be un-
becom ing to him to say in so many words
that the court in following its previous
decisions must dismiss the appeal, but
continuing, in casual way, he could not
help betraying his confluence that the
decision would sustain the California
courts.
~ ~,
California, in which a similar question
was disp osed of by the United States Su-
preme Court and also referred to the de-
cision announced as late Monday a
week ago, in the case OF Kramer, on ap-
peal from the Oregon courts
Warden Hale, it is believed. has gone
home to prepare for Durrant's execution.
Last nigh he said to THE CALL correspond
ent, in discussing the case, that on the
whole he was rather in doubt whether
capital punishment was deterrent of
crime, and he regretted that, as Warden of
San Quentin, he had unpleasant duties to
perform.
You do not execute these prisoners
yourselt?'
No." replied the Warden; "but I have
to be present and see that everything is
attended to properly"
IF a decision is rendered against Dur
rant, when is be likely to be executed?
Warden Hale was asked. He replied:
"The law says that condemned murder
ers shall not be executed within sixty
days, nor shall ninety days elapse after
sentence; but when an appeal is taken
they may be executed at any time after
they are resentenced."
1t appears probable, therefore, that the
Supreme Court will on next Monday dis
miss the appeal and that Durrant will be
Immediately resentenced and his execu-
tion will follow soon after
The Durrant case is exciting consider
able interest in Washington and the East
on account of the proceedings in the
United States Supreme Court and the
question now pending before it, for recol-
lections of the church murders are still
fresh in their minds. When Warden
Hale called at the White House the. other
night the President alluded to them, and
regretted that such murder cases were
not speedily settled instead OF dragging
their way through the various courts of
appeal.
The Supreme Court to-day rendered a
decision in another case which will fur
nish an unpleasant task for the Warden.
The appeal of Harvey Allender, who MUIR
dered a woman at San Jose, was dis
missed because the records of the lower
court we're not filed. Judge Fitzgerald
had been watching this case CAREFULLY.
Yesterday was the last day in which the
records could be filed, so when court was
opened to-day the motion of the Attorney
General to dismiss WAS granted. Thus
Allender's last hope was destroyed by the
default of his attorneys.
Judge Fitzgerald was ready to make a
motion to dismiss the case of Murderer
Ebanks of San Diego for the same reason,
but the records IN the case reached here in
the nick of time and were filed this morn
ing with the clerk. The brief prepared by
Attorney Louis P. Boardman of Susan
ville one OF Durrants lawyers, in reply to
Fltzgerald's argument, was flied in the
Supreme Court to-day. 1t is a rather
voluminous document, but the salient |
points may be stated as follows: 1t Is al
legged that the California courts erred in
refusing TO grant writ OF aabeas corpus,
and the claim Is made that the California
Penal Code and section 8 OF article 1 OF |
the California constitution are In contra |
vention and conflict with articles 5. s and
IA of the amendment 10 the Federal con- |
stltution in that the said provision has |
deprived the petitioner OF the rig OF in |
dictment and presentinent by a Grand |
Jury, and that he has been deprived OF his !
liberty, and is threatened to be deprive d |
of bis life without due process of lew; |
that he has been deprived of the right OF |
an impartial jury trial according to COM
mon law.
Copious extracts from Caifornias con-
stitution and Penal Code are given, as
well as mum erous citations tending TO sup
port their contentious that formal rand |
Jury Indictment and presentment is nec-
essary, among them being the followi ng: |
l. The Federal constitution which says
"nor shall any State deprive any person
of life, liberty or property without due
process of law
2. Justice Field, who said, in charging a
Grand Jury in the California Circuit