Morning journal and courier., 1890-05-24
THE KKMmLKR CASE.

Tho Application for . Writ of Error Denied-The opinion by Chief ustico Fuller-Deash by Electricity Unusual bus Not Cruel.
 WASHINGTON, May 23.-The supreme court of the United Sates to day deDied the applica- tion for writ of error in the case of Kemm- Ter, under sentence of death by electricity. Opinion by Chief Justioe Fuller.
 The opinion first recites the proceedings in the lower courts leading up to the bring ing of the case to this court. The court says that 1t is urged in Kemmler's behalf that the fourteenth amendment Is c prohibition on the state of the inposi- ton of cruel and unusual punishment, this being included in the term due process of law. The origin of the phrese cruel and unusual punishment, the court said, was In the English act of settlement of 1888 and meant that barbarous methods of punishment should not be inflicted. It means that man should not be sentenced to death by torture, but did not mean that tho death penalty itself was cruel. The court of appesls, the opinion says, held that the punishment inflicted on Kemmler was un- usual but that there was no evidence to show that it was cruel. The legislature of New York had the facts bearing upon this question, and the court must persume that the legislature had devised . punish- ment 1t thought less cruel than the former mode. That decision, the court says, was not against any special privilege set up by | the prisoner, and was not so plainly right that the court would not be justified in over. ruling 1t. The fourteenth amendment did not materially change the whole theory oi gems, both of the state and of the United States. The only change is that tht amendment furnishes an additiona guarantee against encroaohment bJ the state upon the fundamenta rights of the citizens. The privi leges and immunities of citizens of the United States are indeed protected by them Those are the privileges arising out of th' essential nature and character of the nationa government. The court quotes the opinion in the Hurtado case on the meaning of th' phrase due process of law. The change il form of death was within the legitimat sphere of the legislative power of tn state. The legislature of the stat of New York determined that 1t did not in fiiet cruel and unusul punishment and it courts have sustained that determination This court cannot zee that the prisoner ha been deprived of due process of law. Il order to reverse the judgment this couz should be compelled to hold that the couI of appeals had committed an error so gros as to deprive the prisoner of his oonstitu tional rights. The court has no hesitation 1 saying 1t cannot do this. . ALBANY, May 2s.-The next step to h ! taken in the courts in the Kemmler case wi
 be tho argument of the appeal from th
 decision of County Judge Corlett of CayuR
 county denying writ of habeas corpus asks
 for on the ground of the unconstitutionalit
 of the power conferred on Warden Dursto
 in tho execution of criminals, which pows is claimed to bs vested in the sheriff . the county wherein the conviction Is hai
 The appeal will come up before the gel
 eral term at Buffalo on June 3. Tn k appeal does not affect the death penalt n itself or the crime or manner of the exec
 tion, and 1t is expected that the general ter
 will dispose of it in time to allow it to
 carried to the court of appeals at its Saratol
 June session. Another issue in the case VI
 be the request for Judge Wallace to vaca
 the writ of habeas corpus granted by him , Syracuse, but on the condition that he wou
 revoke the writ in case the United Stat
 supreme court denied Lawyer Sherman's a if plicstion for writ of error. The writ is ]
 turnable before Judge Wallace at Oanadaig
 June IF.