The San Francisco call., 1897-12-07
WITHIN THE
CALLOVS
SHADOW
The Attorneys for Durrant
Defeated in Their Efforts
to Gain Time.
FRUSTRATED BIZ SUPREME COURT.
1t Decides There Is No Appeal
in the Case Before 1t at
the Present Time.
JUDGE BiHRS GETS 4 TOUCHING UP.
The Justices Intimated That They
Would Hand Down Decision
in a Short Time.
JUDGE BiHRS GETS 4 TOUCHING UP.

The fight which Durrant's attorney have
been making 10 prolong the lie OF their
client is drawing near an end, and the
condemned murderer may soon be called
upon TO pay the penalty for his crimes.
Unless some new complications arise,
which at this time do not seem probable.
the day upon which Theodore Durrant
will look his last upon earth will be set for
the last time, for the Supreme Court sit
ting III bank yesterday NOR ming virtually
decided that there were no appeals in the
case. The Court also indicated its inten-
ton to give its decision in writing with out
delay.
Tnls is just what the attorneys for Dur
rant 10 not want They wished that they
should be given the regular time in which
to file briefs and go through the other
legal formaIities usual in appeal cases.
All this would take great deal OF time,
and time is what the legal gentlemen who
are trying TO prolong the life of their
client are striving to gain. Their hopes
in that direction were crushed yesterday
when the court indicated that the appeal
from the order of Judge Bahrs fixing the
execution of Durrant for Friday, Novem-
Der II, had already been disposed Of 0y
the issuance by the Supreme Court of q
certificate Of probable cause in that mat
ter, which practically amounted to a re-
versai OF the order.
The courtroom was crowded when the
matter came up. Attorneys Dickinson
Deuprey and Boardman for Durrant were
looking somewhat anxious. Acting At
torney- General Carter was alone in the
legal contest and cond ucted his end of
controversy with skill.
A civ hriaf 81
Mr.. Carter asked that he appeal be dis
missed. He stated that the time for the
execution had been passed and ad mitted
informally that there was error in the
order of the court in setting the day of
execution.
He was interrupted by General Dickin-
son, who stated there was an appeal pend
ing and that it should be allowed to take
its course.
''The appeal does not stav the excu-
tion," remarked Chief Justice Beatty. He
inferred that The refusal 10 grant a certi-
ticate OF probable cause on The first ap-
neal which was heard at Sacramento was
equivalent to an affirmation of the de-
c.eion of the lower court. The granting
of the certificate OF probable cause in the
second appeal amounted to a reversal Of
the order made by Judge Bahrs.
Mr.. Garter made an argument in which
he conIended that there was nothing
whatever IN the case to be Htigated or
dec ded by the court and that the time
fixed for the execution had passed. He
questioned the jurisdiction Of the court as
there was nothing to litigate.
Isn't the place of confinement of the
prisoner o question that is raised by this
appea?" asked Justice Henshaw The
fact that the time fixed for the execute on
has passed does not affect that"
Mr.. Garter stated he did not think that
that was an issue in the case.
"Do you think that the last order of this
court staying the execution is still in
force?" asked Justice Garoutte. Mr. Car
ter answered in the negative, when he
was again asked:
Then why do you proceed on that
theory and ask to have the date of execu-
tion fIedP'
Because" he answered, 'ft is a dan
gerous thing 10 execute man when there
is the slightest doubt as TO the legality of
the proceed ings. We want tho Question
left without any dou BIT whatever"
Justice Beatty then ated that the or
der of the lower court had been reversed
in effect and that the court was ready to
reverse it in form as soon as the pa apers on
appeal wers filed. He disagreed with Mr..
Carter 8 views that the court mad no jurIs-
diction in the case.
The Judge of The lower court" said
Justice Beatty, has said in an article to
the newspapers over his own signature
that he could not understand the decision
of this court, so that il may be as we'll to
write one that he can understand"
General Dickinson argued that the ap-
peals should not De dismissed. There is
the uestion of double epunishmentybicb
has not yet been decided He objected
strenuously TO the submission of the ap-
peal.
THE question of double punishment
was denied when we refused to issue a
certificate Of probable cause" said JUS
tice Beatty.
''All here is for you to do" he oontin-
ued 10 Mr.. Carter, sis to submit the ap-
peals aud let the court n axe the formal
decision in accordance with the views al
ready expressed"
Then we must submit the appeal" said
Mr.. Carter.
General Dickinson OBJ jected, and argued
that they had the right to be heard on
the question involved in the appeal pend
ing.
Mr.. Carter then made a formal admis-
sion of error, so as 10 secure a formal re-
version of the order of Judge Bahrs.
1--WE ar entitled to know" said Gen.
eral D ckinson, what is the proper time
to elapse before sentence or execution can
be put into effect after the affirmation
of judgment"
I'VE have already decided that forty
eight hours is insufficient time, and there
now remains nothing upon that score for
the additional reason that the issue has
been passed upon in previous cases." an
swered Justice Beatty
Itis believed that decisio on the case
will BE- handed down in a short time, as
Chief Justc ce Beatty inferred as much by
his remarks. Attorneys believe that the
District Attorney should act in the mat
Ter, and have Dnrrant brought up again
for sentence. II the proper time is allowed
to elapse after the passing of the sentence
and the day set for the execution, il is
IL. 4 Lnt hIcr l.