People v. Durrant

HENSHAW, J. This is an application for a certificate of probable cause to stay proceedings under an order of the superior court fixing a day for the execution of the judgment of death heretofore pronounced against appellant.

It is made to appear from the papers on file on this appeal, and presented to us in support of this application, that appellant having been brought before the superior court upon November 10, 1897, it was by that tribunal ordered that sentence of death be executed upon him two days thereafter, to wit, upon Friday, November 13, 1897.

In answer to the "statutory demand made upon him to show legal cause why the order should not be made, appellant, by his counsel, offered evidence showing that he had appealed to the supreme court of the United States from an order of the circuit court of the ninth judicial circuit refusing his application for a writ of habeas corpus, and introduced in evidence the records of the circuit court tending to show that this appeal was still pending and undecided. Such an appeal, while pending, stays the hands of the state and of the state authorities. (U. S. Rev. Stats., secs. 763-66; In re Jugiro, 140 U. S. 291.)

[56]Against the evidence thus offered no counter-showing whatever was made. It thus having been established that the appeal is pending, it will be presumed to be still pending until the presumption is legally overcome. (Code Civ. Proc., sec. 1963, subd. 32.) Therefore, so far as the record now before us discloses, the defendant was subjected to proceedings in a matter involving a federal question which was sub judice before the supreme court of the United States. Such proceedings are null and void. (U. S. Rev. Stats., sec. 766.)

The question here presented differs from that considered in the Jugiro case, supra. In the latter case Jugiro’s appeal from an order of the circuit court denjdng his application for a writ of habeas corpus had been decided adversely to him upon November 24, 1890. Upon December 1, 1890, the mandate of the supreme court not having been issued, he was brought before the court of oyer and terminer in New York, and there by order a day was fixed for his execution. Upon a second appeal under habeas corpus proceedings, the contention was made before the supreme court of the United States that this order of the court of oyer and terminer was absolutely void. The supreme court of the United States, stating that it took judicial knowledge of its own decisions, and that therefore itself knew that the former decision had become final, declared that, while “it would have been more appropriate and orderly if the state court had deferred final action until our mandate was issued and filed,” it did not “feel authorized to say that the order of the New York court was absolutely void.”