Durrant

Two appeals entitled and numbered as above are pending in this court. Each is from an order of the superior court fixing a day for carrying into execution a sentence of death. The case is this: The defendant was convicted of murder in the first degree by a verdict involving the extreme penalty. He appealed from the judgment and from an order denying his motion for a new trial, but the judgment and that order were affirmed. (People v. Durrant, 116 Cal. 179 .) Upon the going down of the remittitur, an order was made by the superior court requiring the sheriff of the county to produce the body of the defendant in that court on the tenth day of April, 1897. On that day, the defendant and his counsel being present in court, he was informed by the court of the previous proceedings in the cause, and asked to state any .legal reasons he might have why the court should not make an order fixing a time for carrying into execution the judgment theretofore pronounced against him. Has objections having been heard and overruled, an order was made directing his delivery within ten days to the warden of the state prison at San Quentin; that said warden keep him in close confinement in said prison…

There are two appeals pending before this court from orders made by the trial judge fixing the day for the execution of Theodore Durrant. The particular day fixed for the execution in each order has long since gone by. The attorney general now moves this court to dismiss those appeals upon the ground that the orders from which they were taken have ceased to have any force and effect- whatever; that the questions raised thereby are no longer living questions; and that' any decision rendered upon them could not possibly affect the rights of the defendant. In other words, it is insisted that by the mere lapse of time the appeals present nothing but moot questions. This position of the attorney general is eminently sound, and the appeals should be dismissed. The decision of them upon the merits could do neither the defendant nor the people any possible good; and under such circumstances our time should be devoted to matters more substantial and material. In People v. McNulty, 95 Cal. 594 , the court refused to dismiss an appeal from an order similar to those here involved; but there the day fixed for the *212 execution had not expired when the motion was made. Hence that case has no…