The San Francisco Call. Newspaper, June 3, 1897, Page 1

7 g T SN PRICE FIVE CENTS. FEDERAL LAW MAY STAY THE HANGMAN Durrant Breaks Down When| He Hears That Habeas | Corpus Was Denied. A TANGLE IN THE GREAT LEGAL| NETWORK. 1; Two Cases Are on Appeal in the United| States Courts, and the Attorney-General | May Advise 2 Stay of Execution. Uvited States District Judge Hawley has granted Worden an appeal fro ler refusing to award a writ of habeas corpus. The appeal goes to the Circait Court of Appeals, now In session in this City. Circuit Judges Morrow and Gilbert refused m writ of habeas corpus in the Durrant case yesterday, and an appeal from their order will taken to the United States Circult Court of Appeals to-day or to-morrow. Attorneys for both the doomed men bold that they have a right to take these cases to the Supreme Court of the United States if th ot mo relief In the Court of Appeals. They will do this by writ of certiorari, The fate of Worden rests with Attor- ney - General Aull. and Warden Judge Hawley yesterday refused to grant an order staying execution, in- that Fitzgerald timating the statutes themselves probably operate as a stay. He refesred 6 of the United States Ke- ced Statutes. section A number of eminent legal gentlemen conversant with Federal practice say Attornsy-General will prob- ably advise Warden Aull to suspend execation the case is decided in the United States courts. Congressman Maguire has asked Gov. ernor Budd to grant a respite in Wor- until den's case until mewly discovered evi- n be presented. 1 analysis of the legal phases of the two cases follows, togother with some of the pertinent contentions of counsel and decisions of courts. The legal tangle in the Worden ana Durrant cases law. grows more complicated day, and nobedy seems to know the In the Worden case action must be im- | mediate, for to-mo: has been set for the hanging. United States District Judge Hawley declined 1o grant a supersedess or.stay. of execntion, intimsting that if there is any stay it will be by operation of séction 766 of the United States Revised Statutes, without an order of court. Ex- United States District Attorne and others say Judge Haw that he has reversed co! In a simi cas derer Bruggy, heard by September 29, 1392, a forma cation was. issued. Se ings s are stiyed pending an appeal to the United State: oo Court) ail State proc ey e custom of the that of Mar- ige McKenna, the ion 766 provides that all proceed- of State courts and offic upreme Court. The statute says: til final judgment (in the Supre g in Volume 140 1 States Roports are void.” Fhis was also decided of the Unit Worden’s attorneys have but one lecal remedy left to prevent the execution of the death sentence, the remedy by injunc- tion. - As it is highly improbable that any Federal Judge will grant an injunction to carry out the provisions of section 766, the doom of Worden will rest on Warden Aull and Attorney-General Fitzgerald, his legal adviser. Many conservative lawyers say that it would be dangerous for a State officer to carry out the execution in face of the in- hibitions of section 766. That section ex- pressly invalidates and arresis State pro- ceedings until a final judgment, and itis re-enforced and interpreted by the follow- ing rule, number 34, of the United States upreme Court: Custody of prisoners on habeas cor- | pus. Pending an appeal from the final | decision of any court or Judge declin- ing to gravt the writ of habeas corp the custody of the prisoner shall be disturbed.””" not The doomed men’s attorneys are firm in their belief that the hanging of a prisoner | pending the appeal of his case would be a material violation of the rule that say “‘His custody shall not be disturbed pend- | ing appeal.” They also say that the law never intended to grant a convicted man | an appesl, declare all State proceedings | during the hearing of the appeal void and then furnish no remedy to prevent the violation of the rignts previously guar- anteed. The danger of State interference in such cases was set forth in the celebrated | Japanese electrocution cases in New York | ¢ in 1891. 1In those cases it was also stated | that defendsnts have a right totake out as | many writs of habeas corpus as they de- | site, there being no law curtailiog the | privilege. 10se celebrated cases a multiplicity of writs aiter the refusal of two was pre- vented only bv the flight of the Federal Judges from New York City during the previous to the executions. Warden Aull and Attorney - General Fitzgerald do not want to come in conflict | with the Federal laws, and it is learned on of exe- | | straining the Warden from acting. good authc}ity that the Attorney-General prefers toerr on the side of mercy and aliow the Federal judiciary to interpret the mooted points of law. The Attorney-General's assistants spent vesterday searching the Federal ons and consuiting with eminent practitioners. The more they studied the famous electrocution cases the more plainly could they discern the solemn warning, “Hsands offI” That de- cision, which gives a broad hint to State offi is reporied on page 754 of the forty-fourth Federal Reporter and is given below in full. Attorney Monteith applied to Judge Hawley for a supersedeas in the Worden case, but it was refused yesterday after- noon. It would have stayed the execu- tion in the same way that Judge Mc- Kenna stayed it in the Bruggy case in 1892, but Judge Hawley said: I think 1 have no authority to grant the writ, be- cause the proceedings if stayed by the ap- veal are stayed by the statute.” The next step will be to give the appeal bond and serve 1t, together with a notice of apy nd a warning to suspend exe- cution, on Warden Aull. Thac is all that Worden's lawvers can now do, for they have not time to getan order from one of the Justices of the Supreme Court re- In the Durrant case there is time to make a far more elaborate fight, to take steps to enforce the Supreme Court rule and to in- voke an injunction as well. District Judge Hawley beid in the Worden case that the amendment of January 20, 1897, prohibits an appeal to the Supreme Court of the United States except in murder cases where defendants have been convicted in United Staies courts. He refused to grant an appeal to | THE LAW THAT MAY STAY THE HANGMAN. - In ex parte Jugiro, decided by the United States Circuit Court of New York in Japuary, 1891, the hoidings are as £rllows, in full: The prayer of th i fo: » a writ of habeas pus to irquire into the cause of his detention .: Sing Sing prison, in ths district, under a convic:ion in the State court in violation, as he alleges, of the the United States, having bren notw appesls therefrom to the 763 and 764 «f ihe United denied upreme Conrt States Revised St:tutes, March 3, 1885, Is uccorded to him as an absolute statutory right constitution and statutes of and order therefrom duly entered, he Such an appeal, under sections & amended by th- act of This is the second application to this court for a writ of habens corpus by this petitioner under the same conviction, and two of the grounds upon which he buses his present application existed when he made his former application. nd or the twenty-second application, however, this is the sec Whether is immaterial. Under the strtutes as they stand it seems to be left Lo the petiti n -r alpne to de- términe notouly how m ny times he will apply for the writ, and whether he will appeal from its denial, but also how often he will, by operation of section 766 of the Revised Statutes of the United : tates, such appeal, invoke the which pro- vides that, until final judgment thereon, any proceedings against his person un- der State authority shall be null and void. ‘What the precise effect of this section may be, whether, pending such ap- peal, it operates as a stuy, or merely ns a solemn warning that whoever, under State authority, may ta” ny procoeding against the person of the petitioner, does 8o at his peril, 18 no. wow before this court for decision - The Jugiro case was finally ecided by the Supreme Court of the United States in May, 1891, and is reported in the 140 U. S. Keport«. page 291 _Speaking of the section of the Revised Statutes that declares all proceedings of State officers aull and void pending an appeal of habeas corpus, the Supreme Court, in an opin- ion by Justice Harlan, says “*Of the object of the statute there can hs no doubt It was to stay the hands of such court or State while the question was boing ex«mined by the courts of the Union having jurisdiction in the premises. restrained only pending the procvedings in the couris of the Uniied States a antil fival judgment therein But (he jurisdiction of the State is “ judee to allow or deny.” i Itison have little of comfort and manv are suffering for the necessities of life. said that he never witnessed suck suffering as he founa there. e hillsides beyond the city that the cruel policy of General Weyler has obliged the pacificos to make their homes. Huddled in palm huts the poor people The settlement has recently been visited by Commissioner Calhoun and he is reported to have the Supreme Court, but allowed it to be taken to the Court of Appeals If the Court of Appeals declines to issue the writ there will be time in the Durrant S PAN I S H case to take the case to the Supreme Court | by writ of certiorari. | Judge Sawyer held in the case of Sun | Hung, Aug 24, 1885, reported in the | Federal Reporter, “‘that the right of | ppeal to the Supreme Court in habeas | corpus cases is absolute and in no manner | | dependent upon the discretion of the | The attorneys who are fighting for Dur- Charles A. Garter, rely on States Supreme Court de- | rant, aided by ed |a late Up cision for rel by certiorai. o 1 In the case of Lau On Ben against the + teat States, reported in the 144 Unitea | Result of Liberals Re- States, October, 1891, it was held that the . {oagment d Vite “TitEsd Erates O fusing to Attend the Appe habeas co: Cortes. able b, e Suprem States. The court “The judgment or decree of the Circuit Court of Appeals in a case of habeas ays: rpus is reviewable by this court upon } SAGASTA MAY TAKE THE £ ‘ HELM. certiorari when questions of gravity and importance are involved.” In this case the United States Supreme - Court reversed the decision of the Unised E States Ciremit Court of Appeals for the | The Queen Regent Will To- Ninth Circuit. and gave directions to dis- day Determine the charge the prisoner from custody. | . 1f any hitches should srise regarding | Question. the writ of certiorari in the Durrant case it is probable that one of the Justices of the Supreme Court of the United States will be appealed to for an order restrain- | ing the execution pending a full investi- gation of the law by the full court. Attorneys Boerdman, Garter and Den- prey appeared pefore Judges Gilbert and Morrow in the Circuit Court yesterday and presented their petition for a writ of habeas corpus. They relied on the invali- dity of the proceedings against Durrant | | by information, as foreshadowed e sively by THE CALL. and the awarding of the writ was refused. ps will be taken | 10 perfect the appeal to-day, and it is un- | | derstood tbat ex-District Attorney Garter | will go to Washington to-day to apply to one of the Supreme Justices for a super- sedeas to stay the execution of Durrant. The Attorney General's office had re- ceived no notice of the appeal in the Wor- den case up to a late hour last nignt. At- torney Monteith had not had the appeal | entered in the minutesof tue clerk’s re- cord and until the appeal is thus set go- | ing there is no Federal bar to the execu- | tion. | 1f Attorney Monteith shonld to-day per- | fect his appeal and have the Attorney- | EITHER A RECONSTRUCTED OR A NEW MINISTRY. The Ex-Pramier Confident of Paci- fying Cuba and Satisfying the United States. | MADRID, Srary, June 2.—Owing to the Parliamentary s1tuation growing out of the recent altercation between the Duke of Tetuan, Minister of Foreign Affairs, and velligerency resolution, which led to the Liberal legislators refusing to attend tiie Cortes, Premier Canovcs del Castillo and other members of the Cabinet have re- signed. The Queen Regent will hold a when the question of relations with the servative Cabinet, or whether Sagasia, the Liberal feader, shall be invited to form a to grant a respite or that he wiil of his | own motion advise Warden Aull to stay | the execution until the appeal is finally adjudicated by the appellate court. It is well known that the Attorney- | General has often decided men’s fates be- fore. In several cases he advised Warden Hale to hang men in spite of threats of damage suits by relatives, but the attor- | 1t is officially stated that the Cabinet ney-General never before had a Federal | Tesigned because Canovas could not un- statute and a jurigo case standing like a dertake a fresh enden‘vor. to re-establish Wiaie waliln Bl pktn | relations between the Cabinet and the op- It is understood that if either of the | POYition. asthe Queen Regent scemed to doomed men should be hanged befors a | 493170 the resignation of the Ministry. final adjadication of the appeals in habeas | WEYLEK corpus their relatives will bring suits for | damages ugainst the penitentiary war- gens. The attorneys for Durrant are strong in their demands that nothing be done in the Lamont case until a trial of their client for the murder of Minnie Williams. DURRANT Cuba. for The Queea decree proroguing tue Cortes. Preparatory to tendering its resigna- tions the administration pressed votes on supplies for intarnal expenses and ex- penses in Cuba and the Philippines which both bouses voted without debate. 1s 4 MONSTEE, S0 Says @ Spanish Officer Who Incuryed M Brath, NEW YORK, N. Y., June fost im- portant news about the situation in Cubs was given to-day by Don Santiaso Bar- ro:ta, a high Bpanish official, until re. - N RVE GOING y of Santa Clara and during the last « | fourteen years a Judge in the upper Court In Apprehension of Some Desper- | of Justice of the island. Until a few aays ate Deed His Death Watch is Increased. | & Spanisu newspaper in Cienfuegos. SAN QUENTIN PRISON, Car, June |1% #a uncompromising Spaniard and an 2 _Darrant’s courage is forsaking him, | k a Thne stoical composure that has marked | close political !mdnd of L[he 'Mnrq.mu of him asa marvel among criminals is wan. | Apeztegnia, president of the Spanish ing. His 'pai‘swg ucebi:se-re_d with fear, ]F;;{‘;.\';ml;le lv'::i“‘:‘;:lrlllll'lfle‘:::;e:f’:.;Zeiy- nd to-night he is sobbin, in h ain :uwed nn’;l hopeles: % ) 1 fighting against the Cubans, but as he The change was brought about by the | Féfused to yield to Weyler's orders to at- visit of his fither this afternoon. who | tack the Marquis of Apeztegnia in El Na- brought the news that the Federal Dis. | Cional and as he opposed also some of the wrict Court had refused a writ of habeas ‘""‘e“se;'“;i‘x’; :} eh’e'i:’é ‘:’: C:::“L“:_-i!;‘lc;‘;l corpus. As these words fell from his | *¢C! n the pmem'su_;udmo cun;;mncdh man stag- ;:}*‘I‘;v“;"l';d’c';::“l""h"‘::l:;‘_'o";,’i;:l'e‘:;:rn:; gered in his despair. e father told iim . 3 that he had about given up hope. The | d‘]‘;e“:_r‘;‘;:‘.“;’.‘::’!:“' °f:;¢:;::in:;nn!4 son bowed his head in silence. He al- . : ocu- lowed no tones oi lament to escape him, | ents compromising ‘tlr_:a captain-general, but the anguish he felt literally distorred | :": l"‘“;’:':“if “::::m‘:nl‘m‘; ::uel:‘cbefi: his features. | caught by b 3 apes The death watchers looked on in amaze- | 10 this ':"“l‘““!' """ 1‘-1: ‘::El;";el “n‘i" ment. They lad come to believe ihis |20 assumed name. ved 1n this man an abnormal being in his marveious | ¢/t for a week and ‘"" been preparinz a acility of concealing emotion. They woy. | Pamphlet for the Span ;" Government, in dered much that he did not recover him- | Which be urges the Premier to send a velf s on former occasions, and after g | CUmmission lol(;x’:'l:;;;lnv;;llgne all the | facts his repor’ e say: | “The reported pacification of Las Villas | is a lie, pnblishe { with the sole aim of de- Continued on Fifth Page. Senator Comas (Liberal) over the Morgan | council to-morrow to discuss the position, | United States will mainly decide whether | there shall be a reconstruction of the Con- | General notified (hat it is pending, it is | Ministry. Ssgasta is confident of his | generally believed that the State’s chief 2bility 1o pacify Cuba and to satisfy the legal adviser will either ask the Governor | United States by intrusting to General | Mart 7 the execation of reforms | to-day signed a | a Deputy in the Provisional Assem- | ago Barroeta was proprietor of £l Nacional, | He | open enemy of the revolutionists and a | | ceiving the Central Government and | mismanagement. Jignani and Bamo are stopping the work of the Marquis of | practically besiezed by Cubansand their Apeztegnia and some other politicians | garrisons are starving. who are trying to secure the recall of | Barroeta confirms all the \\\'eyler. Weyler's agent at Madrid, | atrocities committed by Weyler. At Tel | knowing how fast the Marquis of Apez- | Tablon, Santa Clara province, while op- | tegnia was progreesing in his efforts | erating with a Spanish column, he saw toward the captain-general, wrote to|eight children driven out of a hut and Weyler that it was necessary to speedily | beaten by soldiers, The hut was fired | send sensational news to counteract the | and the children left in the forest. “In feeling. Thereupon Weyler reported Las Villas pacified. This report is so false that the captain-general dares not pass | from one town to another of ihe province by the main roads or with only a emall es- cort, as Campos did. Weyler never leaves | a tortified place except with 20,600 men. | “Weyler's own accomnplices in these lies | are the first to denounce them in private. | General Arslas, commander of the Jucaro- | brief,” said Barroets, “Weyler is reaily the monster described by the American press. His crimes | bonor my count DAUNTLESS. ks FOOLED BY 1HE The Triek She Played to Aid a Big Fili- bustering Expedition. WASHINGTON, D. C., June 2. ing to offi | Accord- 1 information received by the | Moron trocha, said when he left Havana | Spanish Minister one of the biggest fili- to take command of that military line: | bustering expeditions is about to start ‘There is only one general in Cuba who | from the Suwanee River, on the west deserves the name, and he is Gomez. Barroeta’s information about Pinar del | Rio comes from a Spanish magistrate,who | says that the insurgents swarm all over | the province. In Orieat the whole terri- tory 1s controlled by Garcia. The insur- gents are as weil supplied with arms as the Spamish. Desertions of Spanish soldiers to the Cuban ranks are constant. On the Spanish side all is disorder and | coast of Florida, and a been sent to intercept it. The Dauntless has been play a merry joke on the Federal authorities, and particularly the commander of the cruiser Marblehead who captured her. The Spanish Ministe: bas receivec “~ws that the Dauntless was being used as a decoy to distract atten- venue cutter has Continued on Third. Page. IN PEACE PREPARE FOR WAR | Roosevelt’s Able Speech on Washington’s Truism. OPENING OF THE NAVAL WAR COLLEGE. Broader Americanism Voiced by the Assistant Secretary of the Navy. WHY THE NATION NEEDS MORE BATTLE-SHIPS. | Many Prominent Naval Officers Listen to Sentimen's Which Stir Them. NEWPORT, R. L, June 2.—Theodore Roosevelt, Assistant Secretary of the . formally opened the Naval War reports of | gainst humanity dis- | Collegs this mornins in the presence of 2 hundred army and navy officers and others. His address was a remarkably able preduction upon Washington's maxim, “In time of peace prepare for war.” Before the address those present were introduced to Roosevelt by Commander Caslon F. Goodrich, president of the col lege. The reception took place in the war | zame room of the college, and as the offi- cers wers in full uniform the scene was picturesque in extreme. At 10 o’clock all repaired to the lecture-room, where Com- mander Goodrich introduced Roosevelt in aspeech, which was heartily applauded by all present, among whom were Admiral Colonel Pennington, commandant of Fort Adams, and his officers; Commo- modore Rush R. Wallace, commandant of the naval station; Commander McGowan, commandant of the trainiug stations: Commander B. N. McCait; Colonel Reg- inald Noman, representing Governor Dyer of Rbode Island; Commander W. McCarthy Littele, commandant of naval reserve of Rhode Island, and all naval officers stationed in the vicinity. Secretary Roosevelt prefaced his ad- | | | | | | THEODORE ROOSEVELT, Assistant Secretary of the Navy, Who Spoke in Newport Yesterday cn the Needs of a Greater Navy.