The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1889-10-10
EXECUTION BY ELECTRICITY.
New York law Decided Constitutional in the
Case of Kemler. Under Sentence of Death.

AUBURN. n. Y, Oct. 9.-County Judge
Davy filed his decision in the Kemler case
this morning. This was habeas corpus
proceeding TO test the constitutionality of
the electrical execution law. Judge Davy
decides that the law is constitutional, and
remands the prisoner to the custody of
Warden Durston, of Auburn prison. for ex-
ecution. The de cisionis long, and the first
part deals with the merely legal points in
volved. Coming down to the mainques-
tion as to whether death by electricity IS
unusual and cruel" Judge Davy says:
The Constitution of the United States and that
OF the State of New York, in language almost
Identical, provide against cruel and inhuman
punishment but, 1t may be remarked in passing.
that with the former we have no present con-
cerG, as the prohibition therein contained has no
ret6rence TO punishments inflicted in State
cosirts for crimes against the State, but it Is ad
dressed solely TO the national government.
There seems TO be an element of cruelty insep-
arabic from any taking OF human life as punish
ment Tor crime, but Ii Ia clearly not against this
that the constitutional prohibition is directed. 1t
was held by the Supreme Court OF the United
States, In the Wilkinson case, that a sentence to
common law rule In this State, when applied,
was adopted. and long before, and even after,
until the act of 1883 took effect and no question
That starute hut changed the means whereby to
produce death. and can IL be said that in this
SasO LAno bt on pih!Hiy DcyOh't cStas'-
lished that electricity, death-dealing agent,
Is likely 10 prove less quick and sure i'll operation
than the ropei / believe not.
Three rules appear-First, that to every legis-
Iatlve act there attaches presumption OF con-
stitutionality, and the burden OF showing ii TO
be unconstitutional Is upon him who assails it.
second, that no such act should be annulled by
the judiciary as opposed TO the fundamental law
IN n doubtful case, and, third that when
stitutional question arises before single magis-
trate he should only declare the law invalid
when his duty so TO do Is entirely clear and that
In a case OF grave import he is justified IL not
required 10 leave the matter TO the deliberation
and determination OF the appellate tribunals.
Applying, then. these principles to the present
case, the questions are whether the prisoner has
overcome the presumption that the statute OF
1cSs, III regard 10 the infection OF the death
penalty, provides cruel and unusual and,
therefore. unconstitutional punishment, and
that force of electricity sufficient to
XII any human subject with celebrity and
certainty when scientifically applied. cannot be
generated In my Judgment these questions
must be answered negatively. The most that can
be justly said I'm his favor is that there is diver
sity or opinion on the principal question. Before
the State can rightly he enioined there should
be Judicial knowledge that the punishment there
IN provided Is cruel end unusual There Is no
such knowledge, and his contention fails. Hav-
ing thus sufficiently indicated the grounds OF my
decision. consideration Of the other questions
suggested ON the argument is unnecessary. An
order VIII oe made renlanding the prisoner.
kemier's counsel say his case will be car
ried to the Court of Appeals. both sides hav-
ing agreed TO take that course before to-
days decision was rendered.