The San Francisco call., 1897-06-03
Durrant Breaks Down When
He Hears That Habeas
Corpus Was Denied.
A TANGLE IN THE GREAT LEGAL
NETWORK.
Two Cases Are on Appeal in the United
States Courts, and the Attorney-General
May Advise Stay of Execution.

ceedings until final judgment, and it is
re-enforced and interpreted by the follow
ing rule, number 81. OF the United States
Supreme Court:
Custody of prisoners on habeas cor
pus. Pending an appeal from the final
decision OF any court or Judge decIin-
ing to grant the writ OF habeas corpus,
the custody of the prisoner shall not
be disturbed"
The doomed mems attorneys are firm in
their belief that the hanging of prisoner
pending the appeal of his case would be a
material violation of the rule that says,
His custody shall not be disturbed pend-
ing appeal" They also say that the law
never intended to grant convicted man
an appeal, declare all State proceedings
during the hearing of the appeal void,
and then furnish no remedy to prevent
the violation of the rights previously guar
anteed.
The danger OF State interference in such
cases was set forth in the celebrated
japanese electrocution cases in New York
in 1891. In those cases it was also stated
that defendants have right to take out as
many writs of habeas corpus as they de-
sire, there being no law curtailing the
privilege.
In those celebrated cases a multiplicity
of writs alter the refusal OF two was pre-
vented only bv the flight of the Federal
Judges from New YORK City during the
week previous to the executions.
Warden Aull and Attorney Genera
Fitzgerald do not want to come in conflict
with the Federal laws, and it is learned OF
good authGeity that the Attorney g enera
prefers 10 err on the side of mercy and
allow the Federal judiciary to interpret
the mooted points of law.
The Attorney Generals assistants spen
the day yesterday searching the Fedora
decisions and consulting with eminen
Federal practitioners. The moro they
studied the famous electrocution cases tn,
more plainly could they discern the
sole mn warning, Hands off," That de
cision. which gives broad hint to State
officers, is reported on page 754 of tn,
forty fourth Federal Reporter and is giver
below In full.
Attorney Monteith applied to Judg,
HaWley for a suDersedeas in the Worder
case, but it was refused yesterday after
noon. 1t would have stayed the execu
ton in the same way that Judge Nc
Kenna stayed it in the Bruggy case IL
1892, but Judge Hawley said: II thinl
l have no authority to grant the writ, be-
cause the proceedings if stayed by the ap
peal are stayed bv the statute"
The next step will be to give the appea
bond and serve 1t, together with a notict
of appeal and a warning TO suspend exc
( cution, on Warden Aull. That is all thai
Worden's LAWYERS can now do. Tor they
have not time to get an order from one
of the Justices of the Supreme Court re,
straining the Warden from acting. In
the Durrant case there is time to make
far more elaborate fight, to take steps Il
enforce the Supreme Court rule and to in.
woke an MUM ction as well.
District Judge Hawley held in the
Worden case that the amendment OF
January 90 1897. prohibits an appeal to
the Supreme Court of the United States
except in murdeT cases where defendants
have been convicted in United States
courts. lie refused to giant an appeal to