The San Francisco call., 1897-06-02

The attorneys in the Worden and
Durrant cases are trying habeas corpus
in the United States District Court.
Judge HawIey yesterday declined to
award the writ in the WOrden case, as
he will probably do in that of Durrant
: to- day; but an appeal from the decision
. lies to The Supreme Court of the United
States, which does not meet until Oc-
! tGber. The appeal, it is held, stops all
proceedings and stops the execution
until the Supreme Court passes the
case.
Proceedings OF similar charac cter
were taken in the New York electrocu-
tion cases some years ago, and the
cath sentence. was suspended until tn e
United States Supreme Court affirmed
the constitutionality of the judgments
rend cred in tho State court.
The attorneys for WOrden and Durrant
have constitutional points on which
they hope to win when they reach the
highest Federal tribunal These points
and the latest developments in both
cases,follOw.
Acting under the Federal laws men
toned in yesterdays CALL, Attorney
Monteith yesterday applied to United
States District Judge Hawley fol q writ OF
ha beas corpus for Worden. 1t was not
awarded, and steps for an appeal to the
Supreme Court were at once taken.
Acting under the same laws Durrant' 8
attorneys will to-day apply to the same
court .for writ OF habeas corpus for Dur
T. rant: They expect the award 10 be de-
nied, and they will appeal from the find
: IN es..:
In both the Durrant and the Worden
ease the attorneys are in full consultation.
. The points on which the cases will go up
are wholly unlike, tut the process OF
dragging these celebrated murder cases
from the State to the Federal Jurisdiction
is in both cases the same-the broad and
tedious route of appeal to the Supreme
Court under the sections of the Revised
Statutes given in full in THE CALL yester-
: day. Should Judge Hawley decline to
make an order granting the appeal it will
be taken anyhow and notice theieof duly
filed.
= Attorney-GeneraI Fitzgerald and the
State officers are worried over the situa-
ton. Though they do not permit them
selves to=speak of the gIariDg defects In
the. criminal iuris sprudence OF the United
States, under the double system of State
and Federal interference with Jury YER
~ diets, they yet see that Durrant and Wor-
den are likely to live until that august
tribunal called the Supreme Court of the
United States sees fit to decide the case
1t is the history of the New York cleo
trocution. cases over again on these West
.eSE II l..
publications an appeal was taken from the
decision OF a New York United States
District Judge, and the condemned men
lived until the Supreme Court passed on
the cases-many, many months after The
date OF their sentence in the State courts
Durraut's attorneys and Worden's al
torney feel happy. They say there i.
absolutely no question about the correct
ness of their position. THIS opinion il
shared by Attorneys Knight & Reggertv
by ex-UnIted States District Attorney
Charles A. Garter and by many eminen
legal gentlemen cognizant of the FEEDER ra
statutes and decisions.
At the Federal building the clerks o
all the courts have vivid memories, in on,
way or another, of the long and harrow
ing delays perpet-ated by Attorney T. D
Riordan in the, palmy days of Chinese i'm
portations. Riordan found the Joker il
the law so long ago as the era of Commls
sioner Houghton, and many Celestial
case was hung high and dry on the con
venient peg OF habeas corpus until ap
peals. could be heard in the Suprem,
Court Of the United States.
The hope OF Durrant and Worden /
found chiefly in section 763 OF tn
Revised Statutes of the United States
% 1t provides that "from the final de
cision OF any court. inferior to the Cir
cult Court, upon an application for
writ: of habeas corpus, an appeal may b,
taken in cases where the person nett
tioninE is alleged to be restrained i,
violation of the constitution of tn
United States" Section 764 prohibit
such appeals from the decision of
Circuit Court.
The foregoing law is Interprete in TIL
. following rule, No. "a, of the suprem
Court: Custody of prison ers on habe a
corpus. Pending an appeal from tn
final decision of any court or judge d c
q. cfining to grant the writ of haboas cor
: pus, the. custody of the prisoner sha
!. not be disturbed.
Section 760 provides that all proceed
. ,ings: of state courts and officers ar
: stayed pending an appeal to the Unite
= STATES Supreme Court. The statute says
= ''UntiI final Judgment (in the supre m
;. Court all State proceedings are void.
Thiswas also decided in Volume IA
E: of the United States Reports.
1t is interesting in this connection t
.. know. the two great constitutional point
which will be brought to the highe.
court of the land in the celebrated case
at bar. A detailed outline of these point
ffasnever yet been m ade known. Briefly
stripped of legal verbiage, the points ar
here summarized:
Durrants attorneys will argue that h
should have been indicted by a Gran
Jury and that the filing of an informatio
against him by District Attorney Barnt
was mot due process of law"A-not til
legal and regular method outlined by tt
organic law. This point was fully mac