St. Paul daily globe., 1889-10-10
ELECTRICAL EXECUTIONS.
The Law Providing for Them
Held to Be CONSTITUTIONAL.

AUBBRN, N. Y, Oct. o. County
Judge Day filed his decision in the
Kemmler case this morning. The case
was habeas corpus proceeding to test
the cOnstitutionaiity of the electrical
execution law. Judge Day decides that
the law is constitutional and remands.
the prisoner to the custody of Warden
Durston. of Auburn prison, for eXecu-s
tiOn. The decision is long, and the first
part deals with the merely legal points
involved. Coming down to the main
question as to whether death by elee-s
tricity is unusual or cruel," Judge Day
says:
The constitution Of the United States and
that of the state of New York. in language
almost identical, provide against cruel and
lnhuman punishment; but, II may be re-
marked in passing. that with the former we
have no present concern, as the prohibition
therein contained has no reference to pun
ishments inflicted in state courts FOR crimes
against the state; but is addressed solely to
the national government. There seems to be
an element of cruelty inseparable from any
taking of human life as punishment for
crime, but it is 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 sentence
to death by shooting was not Illegal in Utah.
piled was adopted, and long before. and
even after, until the act of 1883 took effect,
and no question was made as to the legality
of death by hanging. That statute but
changed the means whereby to produce
death, ana it can be said that in
this case it has been plainly and beyond
doubt established that electricity as death
dealing agent is likely to prove no less quick
and sure in operation than the ropes Three
rules arpear-First, that to every legislative
act there attaches presumption OF consu-
tutionality. and the burden OF showing 1t to
be unconstitutional upon him who aSSallS 1t:
second. that no such act should be annulled
by the judiciary as opposed to the funda-
mental law in a doubtful case; and, third,
that when q constitutional question arises
before a single magistrate he should only de-
clare the law invalid when his duty SO TO do
is entirely clear, and that in case of grave
import he is justified, II not required, to leave
the matter to the deliberation and determina-
ton OF the appellate tribunals. Applying,
then, these principles to the present case. the
questions are whether the prisoner
the statute of 1885, in regard to
the infiiction of the death penalty,
provides as cruel and unusual, and there
fore unconstitutional punishment, ana that
a force of electricity to kill an human sub
ject with celebrity and certainty, when scien-
tiiically applied, cannot be generated. In
M Judgment these questions must be an
syeTed negatively. The most that can justly
be SAID in his favor is, that there is diversity
OF opinion on the principal question. Before
the ststute can rightly be abrogated, there
should De judicial knowledge that the pun
ishment therein provided is cruel and un-
usual. There is no such knowledge and his
contention fails. Having thus sufficiently
indicated the grounds of my decision, a
consideration of the other questions sug
gested in the argument is unnecessary. An
order will be made remanding the prisoner.
AGREEMENT FOR AN APPEAL.
~ .lN.- .-s-n nj
say the case will be carried to the court
of appeals. Both sides had agreed to
take that course before to-day's decision
WAS rendered.