Evening journal., 1890-03-22
UNUSUAL BUT NOR CRUEL
Kemmler's Death Kneil Sound
s@.- ed in New York.
ELEcTRocUTIoN IS LAWFUL

sFurderers Sustained by the Court of
Last Resort Kemmier Must Die.
ALBANY, March % I'm the case Of the
eeop'e ex rel. William Kemmler, appellant, |
~ Charcs F. Durston, warden Of Auburn
prison, respondent, the court Of appeals has
banded down decision affirming the judg-
nent oi the lower court Judge Denis
O'Brlen give an opinion, in which he says:
ssThe relator, in his petition for a writ Of
habeas corpus, steted that the cause or pre-
fence o. Tie imprisonment complained Of was
shat after his indictment and trial for the
crime OF murder in the first degree, and his
conv.cmon thereof in the court Of oyer and
termneI he was sentenced by the court to
und.rro a cruel and unusual punishment
for thai crime, contrary 70 the constitution
OF the state and Of the United States and
was threatened with deprivation Of life
without due process Of law by reason OF
such Illegal sentence OF the court.
The warden'p Defenee.
..The writ wos duly served upon the re-
spondent. who made return thereto that he
detained the rnlator in his custody by vir-
tue OF the Judgment of the court Of oyer
ferminer. held in Erie county, whereby the
relator was duly convicted OF the crime OF
murder in the first degree, and also by vir
tue Of a warrant duly delivered to him under
the hand and seal Of the justice OF the su-
preme court presiding at the said court Of
oyer and terminer where the relator was
convicted, which recited the indictment,
trial, conviction and sentence Of the relator,
and directed the respondent TO carry the
same into effect
Cruel and Unusual Punishment.
suThis command and direction TO the war
den was in accordance with the sentence ac-
tually passed upon the relator after conyic.
tion On the return Of the writ counsel for
abe relator offered to prove that the inhiction
bf the penalty named in the sentence name
1y, death by the application Of electricity
fs cruel and unusual punishment within
the meaning OF the constitution, and cannot,
sherefore, be lawfully inflicted
''The attorney general objected on the
ground that the court had no authority 10
take proof in regard to the constitutional v
Of the statute This objection was overiuled
by the county Judge, and the counsel for the
respective parties agreed that referee be
appointed for the purpose OF taking the tes-
timony in pursuance OF the offer The re-
suit was that after hearing upon the report
of the referee the county judge dismissed
che writ and remanded the relator 10 ths
sustody Of the respondent.
Death by Electricity.
"When it appeared from the return Of the
respondent that be detained the reiator In
custody under and by virtue Of Judgment
of court Of competent jurisdiction, where
in the relator was convicted Of murder il
was the duty Of the county judges TO dismiss
the writ and remand the relator TO the Gus
tody Of the warden OF the prison, unless il
should b. shown that the court OF oyer and
tsrminer was without jurisdiction to pass
the sentence which II did It is not denied
that the court had such jurisdiction, pro
viding that the legislature had power under
the constitution TO enact chapter 4se OF the
laws Of 1883 relative to the inniction Of the
death penalty.
prior TO the passage OF this statute the
punishment BY death in every case was 20
BE- inflicted by hanging This provision Of
law was changed by the amendments OF
bhe code above referred TO- and now the
section l503 commands the infection OF the
heath penalty by electricity.
The Acts Constitutionaitty.
"The only question involved In this APP
peal is whether this enactment is in conflict
with the provisions of the state constitution
which forbids the infiction OF cruel and un-
usual punishment Con. Art /, S5i. This
provision was borrowed from the English
statutes passed in the first year of the reign
OF William and Mary. 1t enacts that OK
cessiye bail ought not to be required, nor
excessive fines imposed, nor cruel and UNI
usual punishment inflicted. When this stat
ute was made part Of the constitution OF
the United States the word shall was sub
stituted for the word ought and in thi:
form it first appears in the constitution OF
this state adopted in ls45. Il is not very
clear whether the provision, as il stands in
our constitution, was intended as an admo
milton % the legislature aud the judiciary
or as a restraint upon legislation inf citing
punishment for criminal ofIense. When tn,
statute referred to was enacted in Englan,
il was not intended as a cheek upon th
power Of parliament 20 prescribe such pun
ishment for crime as it considered proper
history OF the Provision.
"Its enactment did not deny any law thei
existing nor did it mitigate the hardness o
criminal punishment in that country 70
more than half century after il appeare
on the statute book A long list OF oifense
were punishable by DEATH many Of whic
had not been SO punished b. fore the bill O
rights passed The ascension 10 the thron
OF new prince was the cause OF enactmen
Of the new law, and it was simply declare
tion Of the way the people wanted the GOV
ernment run But whatever its origin, W
think that is presence in the constitution &
this state confers powers upon the courts I
declare null and void legislative acts pr,
scribing unusual and cruel punishment
fact This Is the power evoked against Ill
amendment to the code Of criminal proce,
ure above referred to by the counsel for II
relator, interesting because Of its great D.
litical research. The power Of the legislats
over crimes and punishment cannot be di
puted
.The amendment describes no new pu
ishnent or this offense. The punishment
death a. heretofore, the only change beil
"A the mode Of carrying il out Tie dea
penalty must be accompanied by pain, al
is resorted 10 only because il is necessary I
the protection Of society.
The Law Declared constitutional.
"The relator attempts 70 show that I
new mode is torturous This argume
would apply with equal force to any untri
method, and if carried out would prohi
the death penalty. Every act OF the les
1ature must be presumed 70 be ia harmo
with the fundamental law until proved G
frary. The testimony Of experts is not
missible TO show that some clause OF
constitution is violated. If the act on
face is not in conflict then extraneous pr
eanaot be brought in. Thecourt finds d
the mode proposed is not cruel within
meaning of the constitution, but unusu
All agree with the court below q
IL removes every reasonable doubt that
...x.lfra 44.r ~ alartrfctfv fo the vital pl