The sun., 1890-05-06
KEMMLER'S LAST CHANCE.
HIS CASE BEFORE THE SUPREME
COURT or THE UNIIED STATbS.


on May ~ to show the United Statos Supreme
Court thar the method by which the Now York
Legislature provided he should be executed Is
without that due process OF law contemplated
by the Federal Constitution. ard there ore
void Mr. Roger NJ. Sherman, his counsel, APP
piled to the court to-day for al original writ oi
habeas corpus. pursuant to the directions
made by Judge Wallace OF the United States
Circuit Court Tor tho northern district OF New
York whom he granted Kemmlor writ TO act
as a stay Of proceedings. The Court denied the
application, but on the suggestion OF Justice
Blntchford. who had boon applied to personally
for a writ of error, the Court informed Mr..
Sherman that he might make an application
for writ of error to bring the case hero for
review. and that they would hear argument on
this application Rt tho next session OF the
court, May 10. rs was done in the case OF the
Anarchist Spies and his fellow conspiraors.
As the court hdIourns on TINT day until reNt
October tho decision on tho application will
under the circumstances, have to be an
nounced from tho bonch almost Immediately
after tho hearing. Should the application be
denied. Judge Wallace will. OF course. when
his writ becomes returnable on tho third Mon
day in Juno next. vacate that writ. The grant
ing OF thu application would havo the effect OF
prolonging kemmlors lease OF life Mt least
yoar. Kemmlers counsel would hRvo tho right
to bringin writ Of error to review the whole
case and argument would have to proceed on
aomc day TO be fixed by the Court The eiTect
OF this would be to dolay final deter rmination
until at least next December.
Before the Court met this morning Mr. Sher-
man went before Justice Blatchford, who is
the Supreme Court Justice presiding over the
New York Circuit. and made an application for
q writ OF error in Kemmlers behalf. Tho JUS
tice informed him that ho would not grant the
application. but that motion for writ might
bo made hofore the full Court. This was the
course taken by Justice Harlan in the case Of
Spies and the other condemned Anarchists.
Mr.. sherman aiterward in upen court. made
q motion for an original witt OF habeaS corpus.
While he was reading this motion he was In
terrupted by interroGatiOns from several Jus
tices based on the fuct that the Supreme Court
was one OF appellate and not, as u rule, VI orig
tnhl Jurisdiction.
Mr. sherman, In response. snid that 1t was
his purpose to show tnat there was an eXcep-
tonal emergency in the present case. and that
ho understood tue Court TO have, ruled in u
previous case that it might under unusual
circumstances grant original wrlts as was
prOUoSed.
Justice Drewer--You say there are special
circumstances which ma 10 m emergency. Has
not this man been under sentence OF death
more than n year,
Mr.. sherman said that there had been no de-
case. While the former counsel had been at
liberty 10 ma ke such u motion. such an idea
ed. was no diIatory motion for tho purpose OF
his motion for au original writ OF habeaS cor
pus. 1t is as follows:
The pettioneris under sentence Of death in the North
Srn srst %! New f%Ts mnIer statute OF New n%5k
through ms nohy current OF electricity sumcient In
S Sc Sntf mi IL sfis
hun The statute also ieavs TO me Wartn 70 * the
which he here aserrs are in Meaon Of the Fourteenth
fis
If NJ nsH. s S., ss If .
anor4 an Opportunity u make ,hs DUPLICATION The
ton BY the court of ArpeaG II is suggested thai
lie Sstt"n an nd.i VT showing the emergency tho
State statute are herewith submitted
The petition of Kemmler referred 70 In this |
lrotion rccites the circumstances OF his cunvic- !
tion and sentence 10 death hy electricity which !
is directed to, cause t. pass through his body:
and asserts that II imposes upon him cruel and !
unusual punishment. and deprives him o. his |
life without due process OF law. contrary to the !
provisions OF the Federal Constitution The |
AFFIDAVIT OF Alr. Shermnn nartatGs the rroceed- |
been printrd and gives succinctly the grounds !
,inon which It Is sought to have the law under I
which kemmler was sentenced declared void.
Mr.. sherman then made il brief argument in
!avor Of granting The writ. IL was contenled
ho said, thar the iniiction Of Gea,h by electric
that tic limited IIivi'cGr or immunity under
The E'ghth Amcndm, m was bv the Fourteonth
a mem llIIDIt tAttu.pu ana protected from
c oachment by the state iIe further muin-
iained that even II tho tigl'h Amendment dII
not exist the writ should still be granted under
The Fourteenth Amendment, on the ground
lat it dopril ed the prisoner OF his life without
due process of law" by inctlnG cruel and
unusual punishment
Justice Field ii il be instant aneous 1t can
not he crnel
Mr., sherman That is nm assumption Of
TACT. We propose 10 show that unless tho cur
rent be applied in tho best scientific manner
there Is not only danger hut probability 0f
torture tNe most fri.htful ever do
Vi-cd by man, and that death will not he pain
ess. because not instant aneous.
Many things, he added had occurred since
he decision OF tho Court OF Appeals. which |
would have an influence in Determining the
,ase.
Justice Rlatchford suggested that tho Court
hould be into med OF tho proceedings before
lim in chambers.
Mr. Sherman said that he had endeayored to
acilitato II speedy disposition OF the case II
he writ Oi error were grantoi it would be re-
mrnahls the second Monday In OctOhor, which
'crtainly would Tot bo So expeditions as II
wit Of ha eas corpus were granted rrturna-
'le the 18th Of May. There had been he sad
he execution a year or more. aud Lo shTuId
o glad to take any measures TO facilitate
matters.
He then proceeded with his argument as TO
rneI and Unusual nunishmpni Ha Thought
.