The record-union., 1898-01-07
No Legal Obstacle Between the Con-
demned Man and the GallOWs.
Everything in Readiness for the Execute
at San Quentin To-day.
Justice Brewer of the United States
Supreme Court Denies Both of
Attorney Boardman's Applica-
tions for a Stay Of Execution and
Governor Budd Refuses to In
terfere.

SAN FRANCISCO, Jan. 6.-Unless
something unforeseen intervenes to pre-
vent it, William Henry Theodore Dur
rant, the condemned murderer OF
Blanche Lamont, will expiate his crime
upon the gallows at San Quentin Prison
tomorrow morning. This morning his
attorneys We're still confident that they
could save him from the hangman's S
moose, but after Governor Budd had
announced his refusal to interfere with
the execution, and the news flashed
over the wires from Washington that
Attorney Boardman had failed in his
mission to the Supreme Court of the
United States, they were compelled tC
acknowledged themselves nonpulSsed.
Attorney Deuprey, as forlorn hope
resorted to the expedient of applying to
the Judges of the Federal Court for a
bill of exceptions to their ruling deny
ing his petition for writ of habeas
corpus yesterday. After a consulta-
ton Judges De Haven and Morrow de-
cided that the allowance of the bill OF
exceptions would not act in the nature
of permission to appeal to the Supreme
Court, and after examining the docu-
ments affixed their signatures to the
bill of exceptions as requested.
Immediately thereafter Attorney Deu-
prey secured from the Clerk of the Cl--
cult Court a certified copy of said bin
of exceptions, and called upon United
States Marshal Baldwin to serve it and
a notice of appeal upon Warden Hale
at San Quentin. 1t was claimed by
Attorney Deuprey that this notice acted
as stay of proceedings, and that the
Federal Judges having signed his bill
of exceptions. nothing could prevent
him from perfecting his appeal thereon.
Marshal Baldwin at first demurred to
being pressed into service. but acting
upon the advice of the United States
Attorney, he accompanied Attorney
Deuprey TO San Quentin and served the
documents upon Warden Hale. That
official at once referred the matter to
the State Attorney General. who ad-
vised him that the acceptance of service
of such documents as had been sub
mitted to him did not act as stay of
execution, and that there was no legal
reason why he should not proceed with
the execution.
Returning to this city Attorney Deu-
prey at once repaired to the United
States Circuit Court, in order if pos
sible, to perfect his appeal; but act
ing under the instructions issued by
both Federal Judges yesterday in pass
ing upon the question of Durrant's al
legged right to appeal, the Clerk refused
to accept the necessary notice of APP
peal. and the attorney was compelled
to retire without having gained the
point for which he had been striving all
day.
Governor Budd deferred his decision
upon the appeal for executive clemency
which had been submitted to him yes
terday until late hour this afternoon
in the belief that Durrant's attorneys
would cali upon him; but either they
were too busy to do so, or considered
that it was waste time, for they failed
to appear.
Meantime Durrant's parents an
nounced their determination to call on
the Governor for the purpose OF making
a final appeal for their sons life, but
the Governor absolutely refused TO see
them, and they then left the city foi
San Quentin. in order that they might
spend the night with their son and bid
him farewell
BOARDMAN'S MISSION FAILED.
WASHINGTON, Jan. 6.-Justice
Brewer to-day refused both of Attor-
ney Boardman's applications for inter
ference in the Durrant case.
Immediately after the adjournment OF
the Supreme Court at 4 O'Clock. JUS
tiee Brewer repaired to the Attorney
Generals room, where he received Mr.
Boardman and went over the case in
detail with him. He first considered
the application to sign citation upor
the appeal which was sought to be TAX
en- from the judgment of the Fedora
Circuit Court of California denying tbs
issuance of writ of habeas corpus, the
object being to perfect the appeal
This application was refused. and Their
Mr.. Boardman presented an application
for writ of eror from the Judgment ot
the Supreme Court of California upon
the appeal from the last order of Judge
Bahrs fixing the date for Durrant's exe-
cution. the object being to secure writ
of supersedas which would act as q
stay of proceedings. In this matter Mr.
Boardman sought to have the order
denying this appeal considered as tbs
final Judgment of the Supreme Court
IN the case.
In denying the application upon the
habeas corpus proceedings, Justice
Brewer said that under the construction
by the court of the Constitution, the
Federal Courts had no power of limita-
tion upon the right of appeal in habeas
corpus proceedings, the opinion being
that such appeals should not be al
lowed where the appeal operates to sus-
pend the power of the State authorities
and especially where the case has al
ready been heard and one appeal in 8
habeas corpus proceeding.
With reference to the writ of error, hs
considered especially the representation
OF Mr.. Boardman upon the claim that a.
the Constitution of California grants al
appeal. such appeal becomes vested
right The Justice considered this point
carefully, but said that as he could not
accept the courts judgment on this
point as its final action, he could moi
therefore see his way clear TO interfere
on this account.
Mr.. Boardman pointed out that the
nrobable execution of Durrant to-mor-
row would have the practical effect ol
making the judgment final so far as L
.bo,,ld bear upon his fortunes, but tbs