The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1890-05-22
THE KEMMLER CASE.
Argument Had Before the Federal Supreme
Court,

| under sentence OF death by electricity, was
heard in the supreme court Of the United
States TODAY Roger VI. Sherman, counsel
for Kemmler who made the applica-
ton. appeared for the condemned
murderer. He based his argument
on the fourteenth amendment to
the federal constitution which provides
that No state shall make or enforce any
law which shall abridge the privileges or
mmunities Of citizens of the United
States, nor shall any state deprive any per-
| son of life liberty or property without due
| process of law" and on the eighth amend
ment which provides that ''cruel and
unusual punishment shall not be in
flicted." "
Every seat in the court room was filed,
| but there was no crOwding, such as pre-
| vailed Yesterday when the case was to have
| been heard Ex-AttOrney General Gar
land ex-Secretary Bayard, several senators
and representatives, and Attorney General
! Tabor of the state of New York, Were
within the bar of the court.
Mr.. Sherman explained the circum-
stances under which the writ of error was
brought. 1--WE assume" he said, with en-
tire confidence that the determination of
! questions which the decision Of this court
have left open will not be reached in this
| case upon the present motion, but upon
the return to the writ and in due course
Of law"
Mr. Sherman contended that the infic-
ton of death by electricity was cruel and
| unusual, and therefore without due pro
cess of law He held that the question
what, in the state of New York, is a cruel
| and unusual punishment for the crime OF
! murder is of federal cOgniZance under the
| fourteenth amendment, although 1t in
wolves the construction of the state consti-
tuition and the supreme court of
! appeals on it. Mr.. Sherman also
| held that the warden Of the
! penitentiary at Auburn was given too great
! discretion by law. 1t conferred upon him
! a power which had heretofore been solely
cOnfided to the court. He cOntended that
the effect of the fourteenth amendment
was to fix the law as it was in 1866 and to
prohibit any change by the states, which
was then unusual, because cruel, or which
was not of the nature of mere remedial
and administrative process. The prOvlS-
ions of the New York statute for soil
tary confinement, for COncealment OF the
day of death from the prisoner, leaving its
determination to the warden, he claimed,
were not to be sustained by the common
law. but were in violation of the four
teenth amendment. In discussing the
question as the comparative humanity OF
| the electric current and the rope, MT
Sherman held that the electrical law gave
the warden no discretion in the matter
of the application Of the electric
current He was obliged to continue
the current until the criminal was
dead. The Garden might use the current
for week if necessary, until killed. 1t
had been shown that not electricity, but a
series Of nervous shocks was TO cause
death.
Mr.. Sherman gave a number of instan-
ces of the infiiction OF death by electricity
to show that a man would not be instantly
killed by the application provided for
under the New York law. He believed
that if a current of electricity were con
tinuOusly applied to kemmler 1t would
be ditfused over his surface. The
result would undoubtedly be to
an extent, the criminal would become part
of the circuit and that his skull and skin
would lend resistance to the current. A
mans resistance was greater than %, loO
Ohms It might easily be 100000 ohms.
Kemmler would simply be tortured if the
current contemplated were applied He
would ultimately die, but the Intern
wOnld be torture He might be cremated
on the surface. or he might be carboniZed.
The wet spOnges to be used as part OF the
electrical apparatus had to be kept wet
during the passage OF the current.
How was this to be done? 1t was intended
to have a man play hose on the spOnges
during the passage of the current, but this
was abandoned because during the burn
ing Of some electrical works firemen had
received shocks while playing water on the
Now it was intended to have water drop
in some way on the spOnges. He wouId
like to know how it was to be done with
out danger.
Mr. Sherman. in conclusion, referred to
the fact that ,JudgeWallace. whom he called
n humane eminent and learned judge. well
aware of the unsettled condition of several
questions involved in the case, had held
by the granting of a writ Of habeas corpus
to Kemmler, under circumstances of eX-
ceptiOnal deiicacy and humanity, that at
least a proper case was presented Tor
judicial consideration. He confidently be
lieved that he would not receive the IN
merited rebuked of decision by the court
that there was no serious federal justice IN
the argument submitted by him.
Attorney General Tabor, in opening his
argument referred to the last statement
of Mr.. Sherman, and said that Judge
Wallace had granted the writ of habeas
corpus because he was willing to do all
that was proper in order TO give hemmler
a chance for his life Mr. Tabor appeared
as counsel for Warden Durston, of Auburn
prison in opposing the granting OF the
writ of error. Mr.. TabOr'S argument con
sisted principally of coplous references 10
decisions concerning the fourteenth amend
ment He laid much stress on an Opiu-
ion delivered by Justice Miller of the Uni
ted States supreme court containing the
statement that there exists some strange
miScOnceptiOn of the scope of the four
teenth amendment. Quoting from the
decision. be read: In fact it would seem. !
from the character Of many OF the cases
before us and the arguments made in them,
that the clause under consideration IS
looked upon as a means OF bringing to the
test Of the decision Of this court the
abstract opinions of every unSuc-
ceSsful litigant in a state court of the JUS
tiCe of the decision against him, and Of the
merits of the legislation on which such a
decision may be founded"
The fourteenth amendment, he claimed,
was not applicable to this case. There
were several provisions of the federal con
stitutiOn that were not applicable to the
states The laws for the execution
of criminals were regulated by
the states themselves. For two years
the controversy over the execution Of
kemmler had been going on. Five men
were held for murder in the state, but
could not be executed because Of the lltl-
cation. The state of New York. ne said.
wanted to know where it stood rs TO the
execution of criminals As for the eighth
clause concerning cruel and unusual pun
iShment that provision vast same IN the
constitution of the state of New \ OrR aS il
was in the federal constitution.
The testimony in the New \ NOTk court Of
appeals was referred TO by Mr.. Tabor and
extracts from the opinions of the judges Of
the court on the case We're also read
In conclusion he stated that in view Of
what these judges had said. it would seem
To be an entirely unnecessary. If not
improper. proceeding upon the part
of the supreme court to read and
examine thousand pages Of testimony
Tor the simple purpose of discovering
whether all of the state courts We're not
wrong in regard to the admitted question
4