The herald., 1897-11-12

W1n cruel and unusual. and had no
\ president IN the criminal annals Of the
U1llked States.
The plea was further set forth that
Dufrant had not been accorded the
EiSAts guaranteed him by the Federal
Constitution.
Attorney Boardman followed General
Dickinson, arguing in support of the
motion to grant writ of habeas corpus.
The court announced that a decision
would be given at 2 o'clock this after
noon.
THE PETITION DENIED
SAN FRANCISCO, Nov. 11.-When
the United States Circuit Court recon
vened this afternoon Judge De Haven
rendered decision denying the petition
for writ of habeas corpus applied for
by w. A. Durrant, the father of w. II. T.
Durrant, earlier in the day. After some
legal skirmishing. Attorney Boardman,
on behalf of Durrant asked the court
for leave to appeal from this decision to
the United States Supreme Court
fudge Morrow, however, declined to
grant the necessary permission to ap-
peal, and, further, refused to give the
attorneys for the defense any satisfac-
tion other than to order the refusal to
grant their requests spread upon the
minutes of the court.
BEFORE THE SUPREME COURT
SACRAMENTO, Nov. II. - Eugene
Deuprey, leading counsel for Theodore
Durrant, arrived here this morning and
went into consultation with ex-Attor-
ney-&eneral Hart. At the end of the
nnv0v11f tinv, Tla1irrax ho Gu
preme Court, now sitting here, for
writ Of probable cause, asking for a
stay Of Durrant's execution.
Deuprey prepared a petition for a writ
of probable cause staying Durrant's ex-
ecution, which was partially argued be-
fore the court in chambers. Deuprey
based his application for the writ on
three separate grounds, the first of
which was that the Supreme Court of
the State had no official knowledge that
the Supreme Court of the United States
had acted upon Durrant's appeal from
the decision of the Federal Court.
The further plea was advanced that
the Superior Court acted too hastily in
sentencing Durrant yesterday to be
hanged Friday; that he should have
been given from sixty to ninety days in
which to suffer the infiiction of the
death penalty, Deuprey urged.
Durrant's counsel also argued that the
pendancy of an appeal in another case
affecting the condemned man should of
itself be sufficient cause for a stay OF
execution.
Deputy Charles Jackson, representing
the Attorney Generals office. resisted
the contention of Deuprey, and cited the
decision in the case of ex-parte Iugario,
reported in the 10th United States Re-
ports, where it was held that it was not
necessary for State courts to await the
official notification of the action of the
Supreme Court of the United States,
but can proceed Immediately upon the
of the court being rendered.
Jackson contended also that the re-
cent action Of the Supreme Court Of the
United States was a matter within the
judicial knowledge of the State court.
The arguments occupied less than an
hour, after which time the court took
the application for the writ under con-
sideration.
The court granted the writ. directing
a stay of execution until further order,
Justice Garoutte dissenting. Subse-
4ucIlly lHc lOliONlliE Opiiiloii W oo liiSb.
This is an application for a certificate
Of probable cause to stay proceedings
under an order of the superior court
fixing today for the execution of the
judgment of death heretofore pro-
nounced against appellant.
1t is made to appear from the papers
on file on this appeal and presented to us
in support of this application, that ap-
pellant having been brought before the
superior court upon November 10, 1897.
1t was by that tribunal ordered that
sentence of death be executed upon him
two days thereafter, to-wit, upon Fri
day, November II, 1897.
In answer to the statutory demand
made upon appellant to show legal
cause why the order should not be made,
he, by his counsel, offered evidence show
ing that he had appealed to the supreme
court Of the United States from an order
of the circuit court of the Ninth judicial
circuit refusing his application for writ
Of habeas corpus and introducing in ev-
1dence the records of the circuit court
tending to show that such an appeal was
still pending and undecided. Such an
appeal, while pending, stays the hands
of the state and of the state authorities
CU. S. Rev. Stat, Secs. 1853. 764, 765 and
766; in re Shibuya Jugiro, 140 u. S., 291)
Against the evidence thus offered no
counter showing whatever was made. 1t
thus having been established that the
appeal is pending, it will be presumed
to be still pending until the presumption
is legally overcome. &C. c. p, Sec. 1868,
Sub. 32)
Therefore, so far as the record now
before us discloses, the defendant was
subjected to proceedings in matter
sub judice before the supreme court of
the United States. Such proceedings are
null and void. GU. S. Rev. Stat. Sec. 1861
In the present case the question is
not what judicial knowledge has the SUI
preme court of the United States of its
own decisions? But it is: What legal
evidence was adduced before the judge
of the superior court to justify him in
pronouncing the order in question after
q showing by appellant that his appeal
staying the hands of the state authori-
ties was still pending? If he had no
evidence warranting his act (and none
appears in the record presented) then
the order is certainly erroneous, and as
such reversible upon this appeal; while |
In the Jugro case mere matters of error
could not be and We're not considered.
There is yet another Independent con-
sideration calling for the issuance of the |
certificate applied for. The order here
under consideration is an order made |
after final judgment. From such an or