The San Francisco call., 1898-01-01
Federal" Courts Do Not Hear a Habeas~ Cor
 pus Petition.
The Supreme Court Refuses to Issue a Writ of Probable
 Cause.
How Attorney Boardnnan Missed See
 ing Judge de Haven-Grounds of the, Petition.


 ] ever that the case of Durrant, the criminal of the century, will see its end next Friday when the condemned man is sentenced to expiate his crimes by the rope within the gloomy walls of San Quentin Prison. Not only. did the Supreme Court deny the applica- tion by his attorneys for. a writ of probable cause yesterday, but the r .u. $. Circuit Court, Judge Hawley presiding, refused to entertain the reading of a petition for writ of habeas corpus, and Judge de Haven of the United States District Court avoided consideration of the question by adjourning court at time when Attorney Boardman was busily en- gagged in the United States Marshars office.
 At Il a. m. Attorneys Deuprey and Boardman walked into the Circuit Court room. Only Judge Hawley, the clerk and the bailiff were present in addition to the attorneys. Acting as spokesman, Deuprey said:
 If your Honor please, we have here a petition for writ of habeas cor pus in Durrant's case which we would like to have you consider"
 Judge Hawley said that he would not listen to the matter on account of the fact that he was not familiar with the case and had made prepara- tion to leave town at once. Boardman then tried his hand at persuasion, with no better result. except that Judge Hawley consented to leave court open until the afternoon, with the expectation that Judge Morrow would make his appearance.
 At l p. m. Judge Morrow had not appeared, and the bailiff, acting under instructions, wanted to close the court room, but Marshal Baldwin waited with the attorneys until 1:15 D. m. No Judge appearing court then stood adjourned until next Monday morning at Il o'clock. Judge Hawley had con- sented previously to an understanding that the application had been formally presented.
 The next resort of the attorneys for the condemned man was to the Dis trict Court. The manner in which they failed to get the petition heard there is interesting, to say the least.
 Attorney Boardman learned from the bailiff that Judge de Haven would ap- pear in all probability in the court room at 3 D. m. Accordingly he laid all his papers down on the desk and retired into the room of the United States Marshal, across the hallway. He was there busily engaged in tele- phoning when Judge de Haven walked into the court and took his seat.
 ''Is there any case to be brought to the attention of the court to-day?" he inquired of the bailiff. On receiv- ing the answer that the book was blank he remarked:
 ''The court will then stand adjourn ed until next Monday at Il a. m."
 With those words the Judge made his exit from the room, and it was closed to intruders by the bailiff. At ten minutes before the hour Attorney Boardman started for the courtroom. He was met in the hallway and assured that the court had adjourned. His surprise and bewilderment were evil dent, but he lost no time in leaving for General Dickinson's office as soon as the bailiff had unlocked the door and permitted him to regain possession of his papers.
 The application for writ of habeas corpus was based upon the facts that Judges Morrow and De Haven had re- fused even to file a petition for a writ of sflabeas corpus, the contention being that the law gives the right of appeal from a refusal to issue such writ, and further, that an appeal is pending before the United States: Supreme Court and the Supreme Court of the State. These were the principal points made in the document.
 =. The Justices of the Supreme Court yesterday denied the application of Durrant for a certificate of probable cause, the denial being signed by Chief Justice Beatty and Justices Van Fleet, Mcfarland. Henshaw and Temple. Thus is shattered what is believed to be the last hope of the murderer to stave off the fatal day, January ', on which, according to the sentence of Su- perior Judge Bahrs, he must be hanged. E In the petition settled by this deoi- sion the petitioner assailed the juris- diction of Judge Bahrs, holding that he had no right to pass sentence while there was an appeal still pending in the Supreme Court of the United States. This assumption was based on the fact that shortly after the former appeal was decided by the highest tri- bunal Durrant was taken before the Superior Judge, who passed the death sentence before the remittitur of that court arrived in the Federal court in this city. The defendants attorneys made an attempt to get out a writ of habeas corpus. which Federal Judges Morrow and De Haven refused to is- sue, and Judge Morrow directed the clerk of the court to refuse to accept or file the documents in an appeal from this decision. The prisoners attorneys claimed that that appeal existed, whether the clerk accepted or filed the papers or not, and that while this al- legged appeal existed the Judge of the Superior Court had no Jurisdiction.