The San Francisco Examiner from San Francisco, California • 2

THE EXAMIKER. SAN FRANCISCO- FRIDAY MORNING. JANUARY 7, 1898. have made that application this afternoon but for the fact that the Supreme Court was 1 1 II II III ,111 I I II I 1:1 I ami engaged in hearing an important argument. Any Justice of the Supreme Court can sign a citation and stay execution of the State Court' judgment.

Not discouraged by hi failure with Jus tice Brewer, Boardman later applied to Jus tlce Harlan. Harlan, however, viewed the case in the same light as Justice Brewer and refused to give Durrant's attorney any encouragement. Justice Harlan was of the opinion that upon the grounds of public policy and ex pedlency appeals should not be perpetual ly allowed where the effect was to suspend the power Jt the State authority to enforce its criminal laws. Boardman request ed Harlan to grant a writ of error upon the Judgment rendered upon appeal. The certified transcript of the record on that appeal was presented with a petition for the writ, but was refused.

When Attorney Boardman left Justice Harlan and as the two men shook hands Harlan remarked: "I am sorry that I can not view the case In the same light that you do, Boardman. If you expect to see any of the other Justices I advise you to hurry. Your time is short." In the morning Mr. Boardman will see such other members of the Supreme Court as he can before the noon session. Owing to the urgency of the case be will be given instant hearing when the court convenes at 12 o'clock.

Allowing for the difference in time this will give him an hour and a half tor a telegraphic stay of proceedings in case of favorable action. Mr. Boardman will apply either for a writ of prohibition, on the ground that the Jurisdiction of the United States Supreme Court has been usurped by the lower court, or else for an original writ of habeas cor pus. The first method would necessitate a motion for his admission to practice before the Supreme Court, and arrangements will be made to have this done In the shortest possible time, If It is needed at all. But the appeal for a writ of habeas corpus would not necessitate the admission formalities.

In case Mr. Boardman can secure die big- nature of a single Justice out of the eight to bis petition thlB will act as a summary stay of proceedings and the case will then come up for argument on its merits. Owing to the very scant time at the attorney's disposal arrangements have been made with the Postal Telegraph Company to have a through wire to San Francisco ready at noon, so that no time will be lost in forwarding the message. As to the legality of a telegraphic stay of execution one of the Justices of the Su preme Court said to-night: 'It is a matter that so far as I know has never been legally but in case of a telegraphic stay being sent, properly at tested by the clerk of the court, I should think It would be most unlikely that the warden In charge would disregard it. In case of such disregard the court might very Court having exercised its discretion in the matter, and having denied the right to take the appeal, it and the alleged bond were of no avail.

Mr. Fitzgerald embodied his reasons in a brief letter to the Warden, tho DR. LAWLOR, THE PRISON PHYSICIAN, FEELING DURRAMTS PULSE. In the opinion of the physician of San Quentin prison, Durrant will not falter at the last moment, but will die bravely. Dr.

Lawlor visited the condemned man yesterday in the death cell and examined him to ascertain his condition. Durrant's pulse was normal, and he betrayed no nervousness. He refused stimulants or a tonic, and said he would die like a man. to benefit the prisoner. Owing to the peculiar urgency of the case I should say that properly take cognizance of the matter after ward, but In this case it would be too late the San Francisco County Jail I never had; any privacy.

People were coming In and out all the time. Reporters were always interviewing me. I never can express the luxury of the extreme privacy of my cell here. Then there was the other luxury of walking in the open air. I don't know how to say how much I enjoyed that" Here was a man practically on the step of the gallows, recalling with evident delight his glimpse of the sun, his brief breathing of fresh air, his little guarded walk In the confined prison yard.

There was only one thing which seemed to weigh upon him. The gaslight in the middle of the condemned cell was kept burning. "Is It so cold here that you bave to keep the gas lighted 7" inquired the doctor, solicitously. "No, it is not cold, but the gas stops those, disagreeable shadow from falling across me." The shadow referred to were those cast by the -bars of his cell. When the gas waa burning its light counteracted the struggling gleams from the dull dark day which penetrated the windows of the old furniture factory, and In this way the shadow ii PLACING THE PREPARED ROPE ON THE GALLOWS.

The gallows on which Durrant will die was finally prepared yesterday. The rope, which has been stretched and tested, was tied to the fccaffold, and the noose placed ready for its work. Hangman Lunt has personally supervised every detail, to prevent the possibility of any fixed for the execution Warden Hale will full text of which is published elsewhere. This closed the only possible avenue to Attorney Deuprey, and be realized at last that the end of the fight bad been reached; that nothing more could be done. PLEADED IN V.AIISJ".

Lawyer Boardman'a Trip to Washington. Justice Brewer Deolined to Aftbrd Any Relief-Will Address the Court, WASHINGTON, January 6. Another chapter was added to-day to the history of the Durrant case. Another attempt may be made before the. full court to-morrow to secure a stay of proceedings, but there Is not the slightest prospect that It will be suc cessful.

The Chicago limited which arrived In Washington at 11:55 to-day brought a travel- worn, dusty passenger, who had been somewhat of a mystery to his fellow travelers from Chicago, and even more bo to a few who bad made the whole Journey with him from San Francisco. Ho had remained In bla section of the Pullman both day and night during the entire trip and firmly declined to enter Into any of the amusements commonly enjoyed by trsnscontlnental travelers. He seemed to prefer employing bis time In the perusal of thick bundles of legal manuscript. Tht Identity of this gentleman was not revealed until be appeared In the clerk' office of the United State Supreme Court a few minute after the train arrived at the station. He had stopped at the Senate chamber long enougb to secure the good office of Senator White and was Introduced to Justice Brewer as Louis J.

Boardman of San Francisco, attorney for Theodore Durrant The Court was in session and Justice Brewer was compelled to deter hearing Attorney Boardman's plea until court had adjourned at 4 o'clock. The young lawyer employed the Interim in getting his papers in shape for presentation to Justice Brewffr, who has been temporarily designated to preside over the Pacific Coast circuit, owing to the vacancy caused by the retirement of Justice Field. Before leaving California, Boardman secured certified copies of all papers in the Durrant case, including records and everything necessary to satisfy the rigid requirements of the highest tribunal In the land. He was prepared for every technicality that might delay action of the court until too late to save the life of his client. The court meets at 12 o'clock and was already In session when Boardman reached the capitol.

Motions and applications are made immediately after court convenes, and when the hearing of a case is actually under way no interruption ia permitted for any purpose whatever. For this reason Boerdman was unable to take any action which is required to be made before a full board. Although he bad been continually on the road, with the exception of two hours' delay in Chicago, since 6 o'clock Saturday night, Boardman showed very little signs of fatigue and when Justice Brewer sent for him after adjournment of court he was as self-possessed as any of the veterans before this court. The bearing was in chambers, and of course the public was not admitted. The first application was a request to Judge Brewer to sign the citation upon the appeal which was sought to be taken from tho Judgment of the Circuit Court denying the issuance of a writ of habeas corpus.

In denying this application Justice Brewer stated that under tire construttlon of the Federal statute there was really no limitation upon an appeal from the Judgment of lower Federal courts in habeas corpus proceedings, tut that the consensus of opinion on the part of the Supreme Court was that In such procedings appeals should not be allowed where an appeal operates to suspend the power of State authority, especially where the case has been beard upon one appeal In habeas corpus proceedings. In denying the writ of error Justice Brewer admitted that the Constitution of California gave the right of appeal, which I a rested right, but that an order denyln; tho writ of supersedeas was final judgment upon the merits of an appeal. Attorney Bourdman went over the whole ground. He represented that there was a Federal question Involved In the order of Judge Bahrs fixing the execution of Dur rant for January 7tn, as tbere was a question as to his jurisdiction to make the order. Justice Brewer, however, stated that the whole matter had once before been fully considered by the Court, and that he would be compelled to refuse to grant either ap- Dlicatlon.

The denial of the writ of supersedeas Is final judgment of the case. The only re source left Boardman is to apply to the Su preme Court to-morrow for a writ of habeas corpus or writ of prohibition, suspending execution of judgment of the State court until appeal can be effected and the matter of the habeas corpus appeal beard and settled In the Supreme Court. He would every facility will be given the attorney for the condemned for a speedy hearing, whatever the action of the court may be." HIS PULSE IS ISTOKML. Durrant's Nerve on Eve of Death. the The Prison Physician Says the Condemned Man Will Not Break Down.

SAN QUENTIN PRISON, January 6. "All ttalk that Durrant is breaking down is pure vaporing," declares the prison physician, Dr. Lawlor. "The man's condition has been absolutely normal. He has chatted trivial things, noticed matters of small interest, and, more than all, has had pleasant thoughts of his stay In San Quentin.

His pulso has not quickened; his temperature has not risen. If he expected to live ths life of an everyday medical student for the next year he could not seemingly be more himself." "I will die like a Durrant," was bis one touch of melodrama. Dr. Lawlor called on bim for the first time yesterday, and was greeted by the prisoner with nonchalant affability. "I have not been up to see you before, because I knew that if you needed my service! you would send for me," said the doctor.

"But I called to-day to let you know that in case the worst should come, and you wanted any stimulant or tonic to-morrow I would be on band to let you have it." "I appreciate your kindness," replied Durrant, "but I have never needed anything of that kind before In my life and I don't think I'll require It now." Durrant leaned back, his thumbs in the armboles of bis waistcoat, his demeanor that of a man entirely at his ease. This poise was not at all disturbed when Dr. Lawlor spoke of the gloomy outlook for the prisoner, nor was it modified by the comforting suggestion that be bad been in as bad a predicament before. "I see you've had a visit from your barber," commented the physician, noticing Durrant's freshly shaven face. "Yes, and he's left his trade-mark on me," laughingly said the condemned man, pointing to a slight abrasion on bis lower lip, "but that does not amount to anything.

It will be all right In a day or two." That does not look much like breaking down-talk of the healing of a cut lna day or two from a man expected to die within the day. "How do you feel generally," was the professional Inquiry of the physician. "Oh, I'm In my usual health. I have been eating a little more meat than usual, and it has resulted in tho breaking out of this little rash on my face; but that will be hea.led in a few days." Always a "day or two" or a "few days," as if there were still hope that the noose would pass away and the time of doom be again postponed. Then he fell into talk about the Salvation Army.

For this organization be expressed much admiration, though be criticised it drum and fife methods of spreading the gospel. "But they are the only religious people who can reach the low of the lowly," he concluded. The visit of Mrs. Balllngton Booth was mentioned, and Durrant told of his admiration for her as a fascinating woman, and as a Christian of character and refinement. "How did you sleep last night?" put in the doctor, his professional instincts getting the conversation back to physical conditions.

"I slept all nigbt, just as usual. I guess I'm all right. Look!" He hel out his arm dramatically. It was as steady as the prison foundation. Dr.

Lawlor took the arm, bent It so the elbow could rest easily, and felt the pulse. "Just 74, absolutely normal," said the medical man, his tone hardly concealing his surprise. "I tad expected that in hi condition the pulse would have been running over 80," aid Dr. Lawlor afterward, "but I found no trace of nervous disturbance. Evidently there was no difference In bis condition from what it has been ever sln he was brought over here." Next the physician assumed a confidential tone, referred again to the fact that things looked black for the prisoner and urged him to bear up and face the end manfully for the sake of hi father and mother.

"Doctor, I'm the descendant of a rare of people who never flinch," came the quirk reply, given in a tone of dramatic intensity. "They never flinch from anything. My ancestor could face death Itself, and If I have to go up those steps to-morrow, I'll go as a Durrant, and die like a Durrant." Then bis talk went to pleasanter things. He was full of praise for his treatment at the prison and said: "I made the mistake of my life In being prejudiced against coming over here. At were dispelled.

Tint tht wan hla nnlv mvn nf aimAratlf Inn or weakness. He gave Dr. Lawlor on part ing a aulck. firm Krasn of tbe band, "whl seemed natural and hearty." said the tor. "There was not the faintest sign of a.

breakdown. He was thoroughly self-possessed, and I feel sure he will go through hi ordeal without a waver or a break." NO DOUBT OF HIS Blanche Lamont's Relatives Speak. Mr. and Mrs. Noble Believe Durrant Committed the Crime) Charged Against Him.

Mr. C. O. Noble, aunt of Blanche Lament, with whom the young woman was living; when Durrant formed her acquaintance, was seen at her home in this city last night. Mr.

Noble said she was not Inclined to talk of tbe crime, yet as she bad eo often been asked it she had any doubts about the man' guilt she felt It would be but right to express herself clearly on that point. Mrs. Noble said: "If I had any doubt of Durrant's guilt I would not wish to see him punished, but I know there is no doubt of his guilt, and I believe he ought to be punished." C. G. Noble, husband of Mrs.

Noble, was present and indorsed bis wife's remarks. He added: "We have no hesitation In saying that, since the murder, we had no doubt that Durrant was tbe guilty man." WILL NOT INTERFERK The Governor Will N1 Grant a Reprieve. A He Does Not Consider It Neoes- sary to ormsuy oiiiy Warden Hale. Governor Budd said last night that be would not Warden Hale any formal notification that be would not reprieve Dur rant. "Tbe Warden will know, If he receives no notification from me, that I have not inter fered," said the Governor last night.

"It is cot necessary for me to formally notify him that I will not grant a reprieve. I have thoroughly investigated this case, and have read and re-read all the testimony. I have listened to all the arguments presented by the attorney for Durrant, and bave given them patient hearing. The attorney have appeared twice before me once at Sacra mento and again yesterday in my room. I have decided not to Interrupt the execution of the Judgment of the court.

Durrant will not be reprieved, and, unless be obtaius relief from some other source, he will die tomorrow." General Dickinson learned during the afternoon of the Governor's decision, and was not surprised, because be had read in "The Examiner" earlier In the day the detailed instruction given by tbe Governor to Warden Hale to preclude the possibility of suicide. have done all we could." said Die' inson, "and I suppose the case Is now ende I expected the Supreme Court at Washing ton would deny the petition presented by Mr. Boardman, and the failure of bis mis sion did not surprise me. I yet believe Durrant I Innocent, and I yet Insist that he did not receive a fair trial. This case will have an aftermath, for It Is time we knew whether defendants shall be tried under tne law or otherwise." log they may be permitted a closer contact The father will go with the son upon the platform oi This Tas'the i .1 i though he had been urged to stay away, and though his every impulse was to spare himself the dreadful shock.

JT. w. The mother will not be there, tnougn ner first longing was to remain beside her child In the bitter hour. But she will be near at sand to cover his dead face with kisses and conduct the last sad offices over bis remains when the law has claimed its victim and the parents have their own again. The Rev.

Edward Davis of Oakland's Cen-' tral Church, has been asked by all the Dur-. to be the chief spiritual adviser of the condemned man in his last hours. Ho bad a chat with the prisoner last night and found him wondrouBly composed and serene. The prison physician, Dr. Lawlor.

visited the condemned man for the first time yes-" terday. To the doctor was held out an unshaken arm and examination showed tho pulse-beat at just its normal stage. Ther were no tremors of the nerves, no height-, ening of temperature. The prisoner slept like one without a care, though a watchful guard paced slowly around his bed throughout the heavy night. He had little appetite during this day, but wrote and talked complacently.

His writ-. ing was steady and his voice bad no telltale quavers. At night his condition was one of exaltation. During the morning hours he had spoken with pleasurable recollection of the meager prison Joys, the walks in the straightened garden and the absolute frej- dom from intrusion. But when the night hours fell he passed beyond this and de-' clared himself happyjeabove worriment and beyond the grip of Ac.

Then seems no pose in this strangely condition. The boy whose nerves 4 had never failed him was caught up out of himself by some merciful freak of feeling, while others mourned he showed no trat-e of woe. Death bad iost ail Its terrors for him, and for all bis show of fearsom eirmioa be might have been in a hypnotic trance. Then round and round his bed paced the deatn watca, waiting for the dawn. Preparations for the execution are about 4 compete.

The gallows is ready, the trap has teen tested, the rope stretched, the oiled, the floor scrubbed and the wells whitewashed. It has been decided to drop Durrant a foot further then heavier men, his weight being about 155 pounds. Ha will be permitted to sleep as long a be cares to, up to the limit of 8 o'clock. Then, should be be still asleep, he will be awakened. -1 I'pon rising be will put on his ordinary suit of convict clothes.

Then Dr. Lawlor. tea prison physician, will wait upon him to ask wnetner or not ne requires any stimu lant to bra co Mm for the ordeal upon ths ecanold. Breakfast will bs served him and then he will be visitd by Chaplain Drahms, the Rev. Edwards Davis of Oakland and the Rev.

Dr. Rader of San Francisco. These will rffer him the consolation of religion and unite wnn mm in prayer. I'pon their departure he will be attired for execution, dressing himself in a suit fur- Bisncd by bis family. About an hour and a bait before the time 10 Tl' LKff "is leave.

If his parents insist upon It, tbey will then be permitted to visit him for the last time, though this is a somewhat unusual The officials fear that the 7 If the parents visit him Warden Hale will be present personally during the interview. At about twenty-five minutes after 10 o'clock the officers will strap Durrant's arms, and when all is ready the procession win form and march to the scaffold. First will go the ministers, the Revs. Dr. Drahms, Rader and Davis, if all should decide to accompany the prisoner to the gallows.

Following them will walk Warden Hale. After the Warden will come Durrant, sup ported by a guard on either side and with two guards following htm. These guards will be the death watch Jones, Arbogast, Wright and Merritt. Amos Lunt, the hangman, will bring up the rear. Durrant definitely declared to-day to Cap tain Edgar and Dr.

Lawlor that he would make a speech from the gallows declaring his innocence of the crime for which be is to die. i All his requests regarding the disposal of the rope with which be Is hanged and of his body after death will be scrupulously com plied with. The portion of rope remaining about bis neck after the body is cut down will be taken in charge by Warden Hale. That portion which remains on the gallows tree is also to there until the Warden re moves it. Then both parts will be burned.

so that no man may cay he possesses a piece of the rope with which Theodore Durrant was hanged. Durrant asked that no one but his par ents be allowed to look upon his face after death. So the black cap will not be removed until taken off by the parents or by their orders. THIS request of the prisoner is in line with bis desire shown to-day to make a good appearance and bis approval of the work of the prison barber. The face of a man who has been hanged is not a pleasiug sigbt, ana Durrant evidently does not wish those who witness the execution to leave the place with a feeling of disgust for his appearance.

He asked, too, that no surgeon be permitted to probe into his dead body, es pecially not Into his brain. Evidently be de sires that none of his physical or mental shortcomings snail be exposed. Because of this request there will be no autopsy. body will be placed In the plain, black coffin furnished by the prison author ities and then turned over to the parents for whatever disposal they may see fit to make of It. Tbe titber baa declared that be Intended to sink it in the depth of the sea, so that no ghouls might resurrect It to cut It in the cause of science, or make of It a show to lure the dollars of the morbid.

SERVING THE LUST PAPER. (Coatlanrd From Page Oat,) atay, and that the United State Circuit LOUIS P. BOARDMAN, ONE OF DURRANT'S LAWYERS. WASHINGTON, January 6. I am not yet discouraged by the refusal of Justices Brewer and Harlan to issue a citation upon the appeal from the judgment of the Circuit Court of California, denying the writ of habeas corpus, or to grant a writ of error to the Supreme Court of California from the final judgment upon the present appeal in the Durrant case.

Justice Brewer is of the opiniou that, under the statute, a person should be allowed only one appeal in habeas corpus proceedings before a Federal court, and that after his case has been once presented in the Supreme Court from such further appeal should not be allowed. I do not think this conclusion is justified by a correct interpretation of the statute providing for appeals in habeas-corpus proceedings, and it is difficult to see how such limitation can be fixed, except at the mere will and pleasure of the court, and at the expense of the statute. If no limitation is fixed by the statute, the court cannot fix a limitation. It is conceded by Justice Brewer that Federal questions are raised by our application for a writ of error, but that the final judgment of the State Supreme Court denying a motion for a writ of supersedeas is not such a final judgment upon the merits of an appeal as would support the issuance of a writ of error. It Would be hard to conceive how a judgment of an appellate court could be more final than the judgment which has been rendered in the Durrant case, for after the order appealed from has been executed, the appeal will not be further considered by the Supreme Court of the State and will be dismissed.

In my talks with the Justices, I was impressed with the knowledge which they possess concerning the Durrant case and its legal status, and they seem to be interested in the legal fight that has been made. To what extent popular prejudice may have affected the minds of the Justices of the Supreme Court it would be difficult to determine, but its effect is perceptible. I shall renew my application in the morning, and if conditions permit I will apply to the Supreme Court when in session to-morrow for some original order which will give us relief. I shall not relax my efforts until every remedy has been exhausted. 1 LOUIS P.

BOARDMAN. 0.