Capital journal. (Salem, Or.) 1919-1980, 1921-12-01
GOVERNOR
HOLDS UP
EXECUTION
Rathie and Kirby Are
Reprieved Pending
Supreme Court Ac-
tion On Appeal


conviction Of murder in the first
degree on October rs, 1920, the
hand OF the hangman was last
night stayed from the execution
Of John Rathie and Elyie D. Kir-
by, alias James Owen, under sem
tence to hang Friday morning for
completely in the murder OF
Sheriff Til Taylor Of Umatilla
county in the course Of a Jail
break at Pendleton on July rs.
1920.
Following the filing OF an ap-
peal In the supreme court We'd
nesday afternoon from the decree
OF Judge Bingham of the Marion
county circuit court denying a
petition for writ of habeas cor
pus instituted in behalf of Kir-
by, Governor Olcott last night re-
prieved the two men until Febru-
airy 3, next.
Laws Validity Attacked
The habeas corpus proceeding
instituted in Judge Bingham's
court Tuesday afternoon and car
ried to the supreme court on ap-
peal attacks the constitutionali-
" OF the Oregon Nact restoring
capital punishment in this state
rs a violation of the "bili of
rights" and as invalid because OF
irregular proceedings incident to
the reference Of the act to the
people by the legislature of 1920.
John G. Lane, Portland attor-
ney, representing Mrs. G. D. Kir-
by Of Yakima, Wash, mother of
one OF the condemned men, has
announced that he is prepared to
carry the case to the United /,
states supreme court in the event
that the Oregon court fails to
sustain his contention.
Yesterday 1t was believed that
filing of the appeal with the su-
preme court would be followed by
the issuance of writ of super
sedeas or a certificate Of probable
cause by the chief justice staying
the execution of Kirby. In that
event Governor Olcott had stated
that he would then reprieve Ra-
THE pending the outcome of the i
appeal. u
Olcott Only Chance q e.
When Lane. attorney for Kfr-
oy, approached Chief Justice Bur :, =,
nett with a request for the writ ~ :.
81 supersedeas he was informed =
mat there was no provision un- y
Ter the Oregon law for the issu- i
ance OF such writ in a civil pro-
Lane then filed his transcript
y appeal in the habeas corpus
proceeding with the supreme
ourt. ci
This action left the situation in re
he peculiar position Of an appeal be
in the courts with pros 70
ects OF the client hanging be- pa
ore the issues could be brought co
} final determination. st;
Governor Olcott with his power to-
reprieve the condemned men
as the only recourse and his act !.
n in again staying the execution ~ en
the two men was taken in or ~
Or to give time for test Of the W
sputed points Of law in the ifss
ate's highest court. II
Reprieved Once Before II
Rathie and Owen were first Il
ntenced to hang on December 8, #
20. On October 25, just a week Il
ter this sentence was passed Il
rtificate OF probable cause was u
ued and stay of execution II
anted pending an appeal taken Il
I'm the decree of the Umatilla Il
unity circuit court. This decree, Il
wever, was upheld by the SUI II
sme court in an opinion hand Il
down last September, the two Il
n were then resentenced to II
ng on Friday, December 2. II
Plans for their execution had Il
been completed, and invita- II
ms to the double execution are +
eady In the hands OF those II
ose duties require their pres +
e at official executions. u
aathie and Owen when inform Il
Of their reprieve last night had
comment to male. They had
n following the course OF the Il
'spapers and were expecting a ii
? Of execution. +
Case Far Reaching
'unds for the prosecution OF u
habeas corpus proceeding are Il
lg supplied by the Red Cross II
daho, according to Lane. Al Il 81
Ugh the funds are being sup Il
d by friends of Rathie it was Il
'ssary to institute the pro- Il
ing In the interest OF Kirby Il
much as there was no one to =
the petition for Rathie. The II !.
>, however, are parallel and Il ]
as taken for granted that a y
of execution for Kirby would h
the same treatment for Ra-
nal victory fer Kirby in this &
1t is explained by attorneys 8
ouch with the situation, + =
d also mean that other men
sentence to hang in this Il
would be saved from that II