The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1897-05-04
Bill of Exceptions Presented
Yesterday in Judge
RahrS' Court.
Attorney Deuprey Says This
Will Act as a Stay of
Proceedings.
District Attorney Barnes Says the
Execution Will Take Place on
the Date Appointed.

The Durrant case was up in Judge
Bahrs' court yesterday, the bill of excep-
tons being filed by Attorneys Eugene
N. Deuprey and John H. Dickinson on be-
hall of the defendant, Theodore w. Fl.
Blanch Lamont.
The position taken by the attorneys for
Durrant is that Judge Bahrs in passing
sentence of death on the prisoner based
that action on the Judgment hitherto en-
tered by ex-Judge d. ]. Murphy. who at
the close OF the trial sentenced Durrant
to Imprisonment in the State prison and
to be executed by hanging. At the time
of the proceedings in Judge Bahrs' court
the words used by ex-Judge Murphy were
repeated, so far as the order of imprison-
ment before execution was concerned,
aid the court declined to strike out those
words, although Mr.. Deuprey at that
time moved to have them Cancelled from
the record.
In his argument before Judge Bahrs on
the 10th OF last month Mr. Deuprev char
acterized ex-Judge Murphy's action as
pretended judgment" alleging that the
Court in that matter had exceeded its
authority, and that therefore the entire
judgment had been vitiateo and had been
made null and void.
The objection thus made was overruled
by Judge Bahrs and an exception was
duly entered. AT every stage of the pro-
ceedings ions to the orders OF the
court were noted, and particularly there
was an exception to the judgment and
sentence of death, to be preceded by i'm.
prisonment in the State Prison.
Mr.. Deuprey held that there was nice
distinction involved in this point, and he
believed that the court had overstepped
the mark. He admitted that when the
jury returned a verdict of murder of the
first degree against Durrant, without fix
ing the penalty at imprisonment for life,
that fact carried with it the infection OF
the death penalty. Ii the court had
stopped then, Mr.. Deuprey argued. no
error would have been committe in pass
ing sentence, for he thought an error fatal
to the legality of the order was made when
ex-Judge Murphy added the punishment
of imprisonment the State penitentiary
at San Quentin. He cited authorities in
support OF this position, but Judge Bahrs
thought the decisions quoted were not
applicable, so he disregarded them and
followed the words of ex-Juage Murphy
in passing sentence on Durrant.
Mr.. Deuprey said yesterday that the
next thing 10 be done is to print the bill
of exceptions and present the same to the
Supreme Court. "In the meantime" he
aided, 'our appeal to the Supreme Court
acts as a stay of proceedings. / have
heard that counsel for the people say that
this is not SO, but l do not regard their
opinion as binding. This order made by
Judge Bahrs, aside from all other consld-
erations, is clearly an appealabls order,
since it is an order after udgment. Our
bill of exceptions will be filed in the Su-
preme Court on or before the 10th inst,
and there can be no reasonable dispute as
to proceedings being stayed until our ap-
peal has been heard and determined by
the Supreme Court. OF course, there could
not possibly be an execution of Theodore
Durrant before that appeal is decided
against him, as no one has authority to
carry out the order of the Superior Court
until that time. The Warden of the State
Prison would not dare to do it. He would
not care to incur the responsibility and
take the chances of answering to a charge
of murder"
District Attorney W. s. Barnes said: 81
suppose Mr.. Deuprey is doing the last
thing that can be done for his client. OF
course he is all right, so far as that is con-
cerned, but l don't see that this bill of ex-
ceptions cuts any material figure in the
case. 1t will not act as stay Of proceed
ings, and will not interfere with the ex.
ecution OF Durrant unless an order to
that effect is made by the Supreme Court.
A similar course was taken in the Fred
ericks case, but there was no delay In the
execution. 1t was several weeks after
Fredericks was hanged before the Su-
preme Court handed down an opinion con.
firm ing the judgment against him.
"Of course the Supreme Court has the
power 10 issue an order at any time grant
ing a stay of proceedings, and that may
be done; but unless it is done the execu-
ton will come off at the time provided for
in Judge Bahrs' order"
LAWYERS regard this as a very interest
ing point in criminal Jurisprudence, and
it is inferred that Durrant is not alto
gether indifferent to the way in which it
shall be finally settled. Warden Hale has
also some feeling touching the part he is
likely to take in the proceedings, and it is
thought that an effort will be made to
secure an early expression of opinion
from the Supreme Court.