The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1898-01-13

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trict attorney added amendments there
to, then followed frequent meetings of
opposing counsel to determine their diff
| ferences; the document was read by the
court and given to the printers, but it
was August. 1896, before the bill of ex-
ceptions and the transcript of testimony
reached the. supreme court. The case
was then placed on the supreme court
| calendar, and at Los Angeles, in the fol-
lowing October, the defendants attor-
neys not appearing, the case was ordered
submitted on papers filed.
Durrant's attorneys subsequently
moved to set aside the submission, and
they were allowed to file briefs, but were
permitted to make no oral argument.
Attorney General Fitzgerald filed brief
in reply. Durrants attorneys answering
the attorney general in another brief,
| and the case was not really under sub
mission until January, 1897.
The supreme court affirmed the deci-
sion of the superior court on March 3,
1897. and within ten days-ie., on March
i3-Durrant's attorneys filed a petition
for rehearing. The application for u
rehearing was denied by the supreme
court on April 2, and the following day
a remittitur was handed down to De-
partment Three of the superior court,
ordering that court to pass final judg-
| ment.
Superior Judge Bahrs of Department
| Three, fixed Saturday, April 10, as the
day for passing sentence, and on that
date Durrant was resentenced, and or
dered to be hanged at San Quentin state
prison on Friday, June IL. On the af-
ternOOn of April 10 Durrant was taken
from the county Jail, where he had been
confined ever since he was held to an
swer to the police court and taken to
San Quentin.
! Every effort was then made to induce
4 Governor Budd to grant clemency, but
without avail. On June 3, the attorneys
Of the condemned man applied to the
| United States district court for writ
of habeas corpus, alleging that he had
been deprived of his liberty without due
process of law, in violation Of the four
teenth amendment of the constitution of
the United States. The application was
| refused and an appeal was held to act as
stay of execution. Accordingly Gov
ernor Budd granted n reprieve to July 0.
On that date no attempt was made to
carry out the sentence, the case still
being before the court of last resort. On
November y, the supreme court, i'm a
brief opinion read by Chief Justice Fuller,
affirmed the decision of the district court
in denying the writ of habeas corpus.
Attorney General Fitzgerald Immediately
ttiteluDntu ITOll w 10 nave
Durrant executed, without awaiting the
mandate of the court. The prisoner was
brought before Judge Bahrs of the SUI
periOr court and resentenced to he
hanged on November g. The lawyers
hurried to the circuit court where they
tried to secure a writ which would pre-
vent the carrying out of the sentence.
They were refused hearing, but at
once brought the matter up before the
supreme court of the state and secured
writ of probable cause and an order to
the warden at San Quentin not to exc
cute the prisoner until notified in the
future.
The supreme court then reversed Judge
Bahrs' second order. affirmed the first
and direeted the superior court 70 pro-
coed wiz: the carrying out of the judg-
ment by setting a day for the execution.
Accordingly, on December Is Judge
Bahrs resentenced Durrant. this time
fixing the date of the execution for Fri
day, January Z, 1898.
The next step taken by Durrant's at
torneys was the filing of an affidavit
charging that Horace Smyth, one of the
trial jurors, had admitted basing his ver-
dict on information obtained out of court
Smyth appeared before Judge Slack on
December %, charged with contempt of
court. He was promptly exhonerated
but was Immediately sued by Durran's
parents for $4,000 damages for Islander
for having stated, as alleged, that the
condemned man was n moral monster
and had sustained improper relations
with his mother and sister. This ease is
still pending.
An attempt to secure from the SUI
preme court another writ of probable
cause, based on the fact that Judge
Bahrs had sentenced Durrant to die
within sixty days of the time of SEN
tence was denied. On December 81 an
appeal for writ of supersedeas was
made to the state supreme court and was
refused. The federal courts were then
vainly appealed to for n writ of habeas
corpus. On January 3 n petition was
presented to Governor Budd, praying for
executive interference in the case. The
petition stated that Durrant was vital
witness in the SANDER suit brought by
his mother against Smyth.
On January 3 Durrant's attorneys
made another application to the United
States circuit court for writ of habeas
corpus This was denied; also permits
preme court On January 6 Attorney
Boardman arrived in Washington and en-
deavored to persuade Justice Brewer of
the supreme court to grant permission
TO appeal Justice Brewer declined, and
Boardman announced that he would np
pear before the entire court on Friday
and demand to be heard.
In San Francisco, on January q. Att0r-
ney Dickinson md Attorney Duprey
asked the United States circuit court for
leave to file bill of exceptions. This
request was granted and Duprey, accom-
panied by United States Marshal Bald
win. hastened to San Quentin to serve
notice on Warden Hale, claiming that the
decision of the federal court acted as
stay of execution. Warden Hale, how
ever. was guided by the advice of the
attorney general of the state, who told |
him to proceed with the execution. On |
the same afternoon Governor Budd |
formally announced that he would not !
interfere and declined to see Durrant's !