The San Francisco Call. Newspaper, June 1, 1897, Page 14

14 THE SAN FRANCISCO CALL, TUESDAY, JUNE 1, 1897. DURRANT HAS ONE CARD LEFT A Federal Appeal May Stay the Exe- cution. SOME HALF-FORGOTTEN LAW. Hab:as Corpus Proceedings to Be Taken to the United States Courts. THE GOVERNOR HAS REFUSED T0 INTERFERE. Tearful Interview ~B:tween ' the Condemned Man aund His Mother. Durrant’s attorneys will appeal to the United States District Court for a writ Whether the Diatrict Judge awards the writ or denles it there is an appeal to the Supreme Court, and of habéas corpus. that court does not meet until October. ppeal from the decision of a Cireunit Court, for which reason, There is not such an as in the *‘Long Green'’ Law- rence cases, the District Court will be sought. The legal bulwark on which the attorpeys rely is found in section 763 of the Revised Statutes of ‘the United States. It provides that ‘‘from the final decision of any court inferior to the Cir- cuit €ourt, upon an’ application. for a writ of haheas corpus, an appeal may be taken in cases where the person peti- tioning is alieged to he restrained in ot the constitntion of States.”” Se: appeals Circuit Court. The foregoing law is interpreted in the following rule, N , of the Supreme “*Custody of prisoners on habeas from the final decision of any court or judge de- violation United such the 764 prohibits from the -decision of = tion Court: corpus. Pending an appeal clining to grant the writ of habeas cor- | pus, the custody of the -prisoner shall not be disturbed.?’ Section 766 provides thatall proceed- ings of State courts and officers are stayed pendiog an appeal tothe United States Supreme Court. The statute says “*Until final judgment (in the Supreme Court) all State procesdings are void.’ This was also decided in Volume 140 of the United States Reports. In spite of Governor Budd’s decision, corroborating - the” verdict of two State courts, there are strong prospects that the mar-reaching arm of tpe Federal courts will etbow Durrant’s doomsday far into the future: New attorneys bave entered the lists for Durrant, stid the work of preparing his petition - for - Federal interference was pushed all day yesterday with unabated { i The condemned man’s. father sat in Attorney. Deuprey’s office all afternoon studying . the - voluminons transeript in. the celebrated case, while a coterie of ‘attorneys toiled zealously in | thie ad joining - room weaving their long petition for habeas corpus, It will be presented as soon as the United States District Ceurt is in session, or as soon. as a District Judge can be found. -Judge Morrow will resign to-day and will ‘then become a Circuit Judge, thus escaping the case for the reason that an appeal-to the Suoreme Court from the decision of a Circuit Judge in a petition for -babeas corpus does not lie. Such an | appeal may ‘be taken from a District Judge, and that ‘appeal is what Durrant wants. That an appeal from the decision of a Circuit Court does not lie in- such cases was discovered by Attorney Heggerty in | the “Long Green Lawrence procceed- | ings. Durrant'sattorneys had not learned this fact yesterday. and they had intended 10 go into the Circuit Court. to-day. They will'probably realize the danger of such a proceeding in time to defer their action until there is a Disirict Court to appear hefore with their petition. Durrant’s attorneys feel -they will -have a pretty strong paper case ready for pre- | sentation to-day. 1f they decide to risk it | before the Circnit Court they will be care- | ful not te present it to the Judge in cham- | bers, for they say they preserve certain important rizhts by going intoopen court. The defense contends that the effect of a petition for hiabeas corpus is to stay exe- | cution of the sentence of death. [f the | writ be. issued 1t will be heard not more than five'days after it is awarded, and if the prisoner should be remanded to the custody of Warden Hale after the hear- ing, an-appeal will be taken to the Su- preme Court of the United Staies on ques- tions involving the constitutionality of the conviction. Under section 766 of the Revised Stat- XEW TO-DAY. BABY'S SKIN In all the world there is no other treatment 80 pure, 50 Sweet; s safe, $0 speedy, for pre- serving, purifying,and beautifying the skin, scalp, and_hair, and ‘eradicating every hu- awor, a8 warm_baths with CUTICURA Soar, and gentle anointings with CUTICURA (oint~ ient), the great skin cure. (Uticura sold throuzhout the world. .PorTes Druo £new Cour, Sols Frops., Bosten: - Vg~ &l About the Skin, Scaip, and. Hair," free. . EVERY HUMOR "2nfvrics Soute o CH 7 "’uo‘?EATH wWAT Onnaov® //// — = n Wflmfiifll‘l Ty v ° chamber of death. W .“f"‘{ FROM - LIFE TQ DEATH, As Durrant was cenducted to the c:ndemned cell he paused on the threshold, turned, and gazed with a lingering look around. That look spoke volumss. before him smiled an ideal prospect of living beauty; behind him waited the gloomy As he stood there, utes of the United States the appeal to the Supreme Court of the Unitel States acts as a stay of execution. The section says: Pending the proceedings in appesl cases, and until final judgment, all State proceed- ings are void. | ever by his side a guard to see that the | gallows are not cheated of its prey. Now | the end is plainly in sight unless some ex- ! traordinary event sbould intervene. {a tearful This section was interpreted by the Su- | | preme Court in a decision in the 140 U. S. Reports. 1f the District Court decline to grant | the writ then the order so refusing will be appeaied from under the United States Statutes. This will act asa stay of pro- ceedings, The only section of the United States laws that Durrant can get a color of right under 1s No. 753, which provides for the release of prisoners ‘‘committed under State authority” if they are ‘‘in custody in_ violation of the constitution of the United States.” Under section 755 tlie Judge must award the writ “‘uniess it appears from the petition itself that the party is not entitled thereto,” But there is a liberal section of the Fed- eral law, which is the great legal hook by which Dafrant’s attorneys feel surethey will be enabled to grapple the web of California’s laws and gubernatorial dicta ead suspend them harmless in the air until after the Supreme Court decidesthe prisoner’s fate. The court of last resort does not meet until- next October, and they may not | deal of climbing-three flights of steps to | to put the death watch on the prisoner reach the Durrant case for a year after | they meet. | of his projected removal. The shady retreat toward which the | Durrant | scene. legal gentlemen are run- ning iy found in section 763, which | provides that - from the final decis- ion of any ccurt inferior to the Cir- cuit Court, upon an application for a writ of babeds corpus, an appeal may be taken in cases where the person is alleged to be resirained in violation of the constitution of the United States. Section 764 forbids this appeal from the decision of the Circuit Court. The foregoing is re-enforced by rule 34 of the Supreme Court, which says that “pending an appeal from the final de- cision of any court or Judge declinine to erant a writ o habeas corpus the custody of the prisoner shall not be disturbed.’” Durrant’s attorneys are therefore firmly ¢onvinced that they will be able to post- pone their client’s execution for many months, even if they do not save his life. It is understooa that their petition is a | voluminous one, but that one or two main points are relied on, the chief one being the question of the illegality of the infor- mation against Durrant. He was proceeded against by “informa. tion” in lieu of indiciement by a jury of his peers. This procedure, it is contended, is in violation of the constitution and Fed- eral laws, as well as in opposition to the spirit of American institutions. ‘While it is not believed that the attor- peys have much hope of saving their | client’s life, they believe: that he has a | good chance for another year on earth. Durrant’s mother was in a state border- inz upon prostration last night, and it was with the greatest reluctance that she consented to make any furiher sta‘ement for publication. She reiterated what she sud immediately affer hearing the news | that Governor Budd had turned a deaf ea to the appeals for ciemency, and that was ibat sne had not, despite her indisposi- tion, given up hope. She seemed to pin great faith in some- thing that is to take place, and that is | undoubtedly the possibility of delay of- {fered by proceedings in the Federal court. This, she hopes, will afford more time in which to discover ‘means for her son to | escape *he gatlows. Mrs. Dirrant supports her husband in the. assertion that tie condemned man will not attempt to commit suicide. If he has to die, she says, he will make his exit as the law has decreed. S T TO THE DEATH CELL. Affecting Interview Between the Condemned Man and His Mother. SAN QUENTIN. PRISON, Cin, May 8L—Theodore Durrant went from - the arms of his mother to the chamber of death this afternoon. To-night he is sleeping with .the death watch over him in'the barred cage that hasseen the last hours of 50 many murderers. From ‘this time on, sleeping or waking, there will be | eloomy and forbidding walls of the death- | There was just the faintest trace of a weak | | Mrs. Dorrant and her son spent an bour | and a half together this aiternoon. It was | and. pathetic interview. The | mother arrived at. 1:30 o’clock, and the prison rule denving aimittance to visitors | was suspended in her behalf. Captain | Birlem escorted her through the big gate | to Captain Edgar’s office, Her coming was expected, and almost as soon as she was seated Guard Sullivan arrived, escort- For the first time in many days the stoic seli~composure of Durrant gave way. | The tears welled into his eyes as he ad- vanced to meet his mother. - The two em- braced, the son puiting hisarms about | the woman’s neck and kissed her many times. There was much to say, but it was some time before Mrs. Durraat could | force out the words between her sobs. Durrant knew throughout ‘that the or- the death-ciumber awaited him, but Mrs. Darrant did not know ‘that her son had been allowed a day’s grace on her acconnt. It was' Warden Hale's original 1ntention yesterday, but in deference to the mother | he postponed the change of quartersin | order ihat she might see bim without the chamber. - Throughout theinterview Dar- rant refrained from informing his mother At the close of the'conversation there was an affecting The mother became a'most hys- terical as she offered her arm to the guard | to pass her outside to walls, but before the door was reacthed her tears had disap- peared. The hard dry lines returned to | her face, and not a trace of emotion could be detected on her returnto the prison office, The prisoner bore the ordeal of parting bravely. He kissed his mother fondly, but not with the passionate despair that | would have thrown the true dramatic touch to the situation. He spoke hope- | fully of the future, with one foot even then on the threshold that leads to exe- cution, | *Good-by, my Theodore,” said the weep- ing mother. “Good-by, mother, cheer up,” and the son lifted bis hat twice as her form dis- appeared through the iron aoor. —_— | HIS LAST VIEW. Durrant’s Lingering Look on the Thresho.d of the Chamber | of Death. | SAN QUENTIN, CarL., | rant turned to Captain Edgar, who was standing by, half curious, half hesitatin:. | smile about his mouth that masked the feeling within. “Iam going to take you upstairs,” suid | Edgar. “The prisoner smiled weakly by way of reply. - For all there was in Ed- rar’s tones he might have been making the most commonplace remark in the world, but Durrant showed that he real- ized the meaning of the words. | “All right, captain,” he replied, *I am ready.”’ An involuntary movement as if to offer | hisarms for shackies followed. Captain | Eagar told him he could change his| clothes and take a bath. Mechanically | Durrant obeyed. He was given new un- derwear and a brand new suit of stripes, | and all was ready for the trip to the death quarters. The road led across the court- | vard, down the stairway ieading to t.e | tower-yard, thence along an alley between the o!d hospital building and the unused furniture factory. Guards John Miller and J. D. Jones, who have been selected as the death watch, led the way. Behind came Durrant between Guards Sullivan and Jamieson, Captains Birlem and Edgar brought up the rear. As the little procession wended its way across the courtyard the noisy striking prisoners hushed their lungs and the big prison became as still as death. The foot- falls of the party resounded on the cement pavement with a peculiar sharpness in | contrast with the tumult and uproar that had been going on a minute before. Durrant walked erect and firm. He might from his manner have been the least concerned of the seven men. There was nothing about him that made him the higure of interest but his striped uniform. | North from the prison wall below him | age in the haze that distance cast about | ing her son. i | the Governor may inquire into and require a statement of ‘any other facts having | ing been advanced, the duty of the Governor to thoroughly inves May 31 -Dur- | W | stances in investi~ating this application. | interviewed the witnesses and inquired into their characters and credibility. With a quick, alert movement he ascended the stairs leading up outside the brick wall to the door of the death-chamber. Atthne last platform the party paused main prison highway ribboned its way | athwart the landscape, losing itself finally | behind a bend in the contour of the shore | line. Eastward lay the bay, roliicking | for breath. Durrant looked about him. |lazily in the clear afternoon. He might | It was the first time since he passed be- | trace its bayous and windings from the hind the gray wails of the prison he | Marin to the Contra Costa shore. caught a sight of the world withount, ana Inthe distance of Point Richmond a | it was his last view of earth. Around him | steamer was creeping toward Carquinez was spread the most glorious panorama of | Straits. Here and there the white sails of natural scenery in the State. It was a|some stray fisherman’s aory or vagrant California day. The sunsbine fell in | yachtrelieved the broad blue expanse, Oak- warm torrents over land and water. | land, Berkeley and Alameds were a mir- stretched the hills of the San Quentin | them. Beyond rose the sanseared hilis, peninsuls, their terraces fleckea with | a great twany frame to the glorious pic- green trees and the cozy cottages of the [ ture. In the foreground was the prison prison guards. The long, dusty, level | courtyard, with its well trod pavements, THE GOVERNOR'S ‘ DECISION. ‘ After Reviewing the Results of His Investigation, He Decides that | the Law Must Take Its Course. SACRAMENTO, CAL., May 31.—The decision of Governor Budd, as filed | at a late hour this afternoon at the State Capitol building, is as follows: ‘*The hearing of the application of W. H. T. Durrant for pardon or commutation of sentence, heretofore filed, came on for hearing at this office, F lay, May 14, 1897. | Notice was given to the attorneys for Lurrant; the District Attorney of San_Francisco and to the public through the press. Mr. Eugene Deuprey and George A. Tubb, attorneys for Durrant, appeared at the hearing and presented his claims for executive interference.. No appearance was made in opposition. At the conclusion of the hear- | ing the matter was taken under advisement. - Under the law and the constitution the | duty is imposed upon the Gavernor of inquiring into applications - for: pardon, or other interference with the judgment of the courts, in the most general manner. The evi- | dence is required to be forwarded to him for examination. - -The trial Judge and Dis- trict Attorney are required to furnish statements of the facts proven at the triai, and | reference to the propriety of granting or refusing the pardon.’ ““Underfsuch circumstances it tecomes the duty of the executive, in a proper cas . to eive the evidence in the case, the circumstances attending the trial and the credi-} bility of the witnesses, the most searching investigation. He should examine newly discovered evidence, and consider and give the proper weight to evidence and circum- stances which could not have been and were not introduced at or considered by the trial court. ““In the case of Durrant, the petition was based upon the claim that the de- fendant did not have a fair and impartial trial; that the passion of the people and the prejudice of the community in which he was tried, and the course of the press | during the conduct of the trial were such that the evidence could not have been, and | had not been, impartially consicered by the jury, and that if it had been so con- | sidered the defendant would not have been convicted. ““The claim was aiso made that the witnesses, through age and the lack of | powers of observation, or from interested motives, had misunderstood or misstated | the facts, and that there was evidence which had not been or could not have been presented to the trial court or considered by the Supreme Court, because of its | character or other reasons. Under such circumstances and upon such reasons hav- | $ 0 n ate the case, to | look into the circumstances of the trial, to sift the evidence, inquire into the motives | and the credibility of the witnesses, and to make such other and further investiga- | tion into the matter as its nature and its gravity demanded, was plain. *“I have deemed it my duty in this case—without regard to precedent—to make 1 this investigation. *“In the case under consideration, W. H. T. Durrant has been convicted of the murder of Blanche Lamont, and has been informed against for the killing of Minnie illiams. The two murders were intimately connecfed, and while under the law evidence and circumstances relating to the latter case could not be introduced or considered at the trial of the former, | have regarded such evidence as having ‘reference to granting or refusing a pardon,’ and have cousidered it and its attending circum- *‘I have carefully considered the evidence produced at Durrant’s trial. I have 1 have | heard all statements made or otfered by his attorneys and by other persons who | might be likely to inform me in this matter. | *“I have visited the scenes of the crimes with which Durrant stands convicted | and charged, and have neglected no source of information nor neglected any in- vestigation which would_enabl: me to determine the truth in this case, and which would qualify me to deal justly with this man and arbitrate impartially between him and the law. 5 _ ““The position of the public press upon this case during its trial and subsequently is deserving of serious censure, and did I believe the newspapers were in any wise responsible for the conviction of Durrant. or that in the absence of their comment he | might not have been convicted, | would interfere with the judgment in this case to| he extent which I thought the facts justified. It is a grave responsibility to ho!d the life of a fellow-being in your power .and not stretch forth your hand to save him. But when it is considered that this defend- | ant stands charged with the brutal murder of two voung women, members of happy homes, dear to and- beloved of their families, just entering upon careers of gentle Christian womanhood, the stern judgment of the law that a life should be given for a life does not seem too harsh. “No sentimental considerations of sympathy should influence the decision of this case; the young women were Killed without pity; the ears of the murderer were | deaf to considerations of law, of humanity orof mercy. If the law has been properly enforced in this case its judgment should be strnly executed. *“A careful and thorough investigation-into the evidence in_ this case, and the facts and circumstances attending it, has convinced me that it is not a proper case for my interference. ““No new evidence has been produced to show the innocence of Durrant or creating a doubt as to his guilt. 1 feel satisfied that his trial, where he was found guilty by a jury, was fair, and surrounded and attended by all proper legal safeguards and guarantees. ' “*After conference with the witnesses | am convinced of their honesty and credi- bility, and from an examination of the evidence I feel that it was in itself sufficient in character and extent to have justified the verdict, and the judgment passed upon it, while in my investigation I found other material corroborating circumstances not produced at the trial which tended further to support the verdict. *“Under such circumstances, finding no irregularity in the trial of the case, and that the evidence justified a verdict of guilty, I cannot do otherwise than follow the Sup{:mde "Cnurt, and permit the verdict of the jury and judgment of the lower court to stand. | emotional as an image in stone. its flower-beds ‘and the parquets of blaz ing geraniums that have given the place a fame for flowers. wanting to make it a memorable scene. Durrant’s vision roamed over every nook and cranny in the hills and valleys, Once in hisboyhood he had come on a Suaday- school excursion to this pretty peninsula, and the great prison seemed like a blot on the handiwork of mature. He had that day roamed in company with playmates all.about these hilis, while his wondering eyes saw behind these walls a weird pic- wure of ogres and demons. But it was very diffsrent now. The slight striped fizure between the blue- coated guards was drinking his last | draught of pure- air, gazing for the last time on the floral effects of the great gard- ener. There were some things Durrant could not see, The brick walis of the building shut off the view of Mount Tam- alpais in its suit of green and foggy dia- | dem. He could not see the Tiburon hills over which a column of thick air rose above the big City he came from. He would crane his neck and tiptoe, but these were beyond bisline of vision. But just past a point of land to' tie south the neck of Goat Island lay blurred and mel lowed in the light, and a spectral ferryboat passing and repassing might aid his imagination: The guards allowed him to complete the feast. Fully two minutes he stood like a statue with the eyes of half a hundred curions | watching him' from the hills above the prison, while a bali-thonsand convicts watched - hum “through the gratings of their cells. He turned impatiently and signified he was ready to go inside. The door opened and Le passed within as un- Without a word Durrant and his keepers crossed the floor to the coor of the siatted cage that is known as the chamber of death At the threshoid Captain Birlem gave the prisoner his hand. Durrant took it pas- sively. “Good-by, Durrant; I will come up to see you to-morrow,” said Birlem. “‘Good-by, captain,’” replied the prisoner, and repeated the words to Captain Edgar and Guards Jamieson and Sullivan. The big door swung closed, the lock snapped and Durrant was in the ca e that will open again only to allow him to pass into #n adjoining room and up a pair of stairs to the hangman’s trap. Durrant took a chair behind: the bars | while the death watch proceeded to ar- range his couch. His evening meal was then served, and it was noticeable that his surroundings and change of quarters had not in the least impaired his digestion. He ate hesrtily and freely, the guards watching bim like a pair of hawks. After. ward /e lay down on his bed. He in- spected the walls minutely, but there was nothing attractive sbout them; they were clean but stained with age. Above him and out of the reach of the tailest man burned a gas jet. Its feeble, flickering light ‘heightenei the gloominessof the situation. He sought vainly for a shadow where be might hide himself from the guards, but the place wasall alike, a large | square chamber in the center of a big black apartment, a house within a house, that never heard anything but the vain regrets of a man condemncd to die. He was taciturn and gloomy, but never once dia & sigh ora tear escape him, An hour later he lay down to sleep, and Theodore Durrant was alone with himself. Guards Jones and Miller will altervate in their watches and sleeping. Jones has the post of duiy at night. He is one of the most fearless and trusted men about | the pricon. From 'his present location Durrant eannot see the place of execution, but the door leaaing to it is scarcely ten vaces from his cell. He has the same cell that his former acquaintance, F:ank Kloss, occupied before ‘his execution on April 23. The spirit of hope that. has heretotore characterized him is still with him. He'told the guards to-night that he expected a delay in the execution, but Durrant is the oniy man about San Quen:. tin in this frame of mind. ' His removal to the death chamber ‘came about in. tbe usual state of prison routine, and the re- fusal .of Governor Budd to respite him had nothing ‘to do with it. In fact Warden Hale has as yet no knowledge of the Goy- ernor’s action beyond what he nas read in the newspapers. Durrant was sleeping soundly at midnight; The prisoner has given or'ers to War- den Hale that he desires no visitors ex- cept his father ana mother. His wishes Wil be respected. From this time on it'is There was no detail | ] probable that one'of his parents will see | him every day. | The arrangements for the -execution | bave not yet been ‘made, It is probable [ that niot more than thirty people will witness it. - Durrant. has the vrivilege of inviting five of hisirienas, His mother told him this aiternoon that she'or his { father: would be with him at the end. | This would be an unusual state of affairs | and might lead to a* scene, but the prison | officials are powerless o prevent it if | Durrant’s parents insist on-their right to see him die. - BUDD - REMAINS [N TOWN. He Thought It Bsstto Remaln Near the Scene While the San Quéen- tin Revolt Is In Progress. Governor Budd did not leave tne City | yesterday, as he expected to do. He had {engaged the drawing-room of the P man of the 4:30 train for Yoseémite and { bad . his . baggage : checked, but at | the las: minute, Upon ‘the request | of the ' officials ‘of Quentin, he | postponed’ his “trip. : It was deemed best that the execntive should ot go so far { away or into such inaccessible quarters as | the Yosemite Valley. at 'a time when | some action or advice might be required {of him affecting -the. future of the prisoners, Tne Governor, when seen last evéning, refused to discuss either the ‘Durrant or Worden ease or even that of the revolt at | San Quenuin.- In regard ‘to the cases of | the - two murderers he said that he had made a thorough and careful examination into the record of both trials and circum- stances attending them and out of the knowledge so zained had acted officially and that it would be in very bad form for him to discuss the matter at all. | Third - Congregational Church on Fifteenth street, near Mission, this evening at 8 o'clock. | The meeting is called by the music committes of the '97 conveution, and the music will con- sist of ‘the hymns to be sung in July. En- deavorers and their friends irom all the city churches are invited to.be present. B FOOD COFFEE. AMERICANS AS A RULE | Are Not F rably Disposed Toward | Counterfeits, | Either counterfeit money or counterfeit | goods of any kind. The U. 8. Court, sit- | ting ‘at Rochester, N. Y., has ordered an injunction against the sale of Grain-0 in | packages made. to imitate the original | Postum Cereal Food Coffea packages. The counterfeit 1n this case was put ont in packages having tle red seaisand much of the wording of Postum, and the non- | discriminating. public ' have been given this or some one of the other various imi- tations when calling at the stores for the original Pestum Cereal Food Coffee. These makers of articles to furnish gro- cers with which to *'substitute” for some | original article have littleidea of hygienic {or food value in a Cereal Coffee. Some | counterfeits are offered in place of Posium | beeause the package weighs two pounds, | white the genuine package weighs but 13 t1bs. ~One counterfeit two-pound package ;Xacxs iike brown rye kernels ground. It | is probably harmless enough, but no idea of food value is there. -Postum is made | by: skillful food experts, 70 per cent being [ secured from the parts of the cereals con- | taining the albumen and phospt | quired by the human body to re | eray matter in the nerve cells. This part | alsa produces ‘the disatase wlich digests | starch. - That's whyPostum “‘makes red blood” and why thoughtful people use it |- reguiarly.: Buyersshouid look for the red |'seals and" the reg.s-ered U. S. trade mark. | “Grocers sell’ the original and genuine { Postumi at 15 and 25 cents a package. Postea CErEAL Co., Lut., Battle Creek, Mich. 3 Infian Vegetalls Pilly Wrights Indian Vegetabla have us=d them for over forty years 10 cure 8 CK HEADACHE, GIDDINESS, INSTIP AL | TION, Torpid Liver, Weak Stomach, Pimplesang purity the bood. change in application to business. The. ieqie contalns nothing that 13 of the least injury to sl ‘constitution. Askyour drugglst fori.. Y a bottie Sk & § !