New-York tribune., 1890-06-12
AGAIN IN STATE CUSTODY.
JUDGE WALLACE vACATES THE KEMAiLER
WRIT OF HABEAS CORPUS.
ACTION MADE NECESSARY BY THE DECISION
OF THE UNITED STATES SUPREME
CouRT-THE JUDGES REASONS.


Syracuse. June 11.-Judge Wallace, on motion Oh
Attorney General Tabor has vacated and dsmsscd te
writ OF habeas corpus in william KeTmlers case In
the Judges order he rectes the facts OF the issuing
Of the writ, says, snow since the supreme court
the United States has decided that the sentence uno
which Kcmmler is held is due process of law and that
he is not held and detained contrary to the Constu
ton Of the United states, the writ Is recalled and ds
missed, and Kemmler remanded to Agent ana warden
Durstons custody IN order that the judgment Of the
court of Oyer and Terminer may be duly executed"
The following is the Judges memorandum
This writ has served the Office for which 1t was
allowed, and there is no reason why II Should longer
remain in force was allowed because Iere aer sebcS
Kemmer was about to he put TO death dld not onena
the Fourteenth Amendment OF the Constitution; Ihs
was question which could only be finally decided
authortatively by the supreme Court Of the United
states II it had seemed to be question so frivolous s
as not to be worthy Of serious discussion the writ
would not have been allowed, but unless IL was thus
frivolous it was not for Judge OF TINS court 70
the most depraved criminal and thereby deny him the
chance which the statutes of Congress had given MN
of habeas corpus of the highest right The appca
ton for it is addressed not to the discretion OF the
Judge but peremptorly 1t cannot be denied because @
the application has been unreasonably delayed OF DO
cause the most serious inconvenience may result th itU
its allowance and it is wholly immateral whether e.
the applicant is held in restraint by the wanton act
q an individual or BY the highest judicial aatOrT Tsy
%e t se doss Sce not o. extend 1s wt,
reaches any sentence which contravenes the organic
law of the tn IN the vSe Se war recent cts OF OF
and sentenced to death by State Court OF COLORADO
the Supreme Conrt Of the United states 9aees , S
under which he was sentenced was forbidden oy uie
Federal Constitution. A.. ,,,.s0r.
writ on the 25th day OF April last based on verified
petition setting out that Kemmer was confined ana
sny moment to unGer a% Of %
which violated the Constitution OF the United states
taca inf pd a
for the crime of murder. TO wt-by the application OF
electricity The purpose Of the application was ,. 10
Of the United States. II the writ had been refused an
appeal from the decision refusing to allow II would
have been unavaiIing to Kemmer, because he would
have been dead. 1t was not improbable, however that
other convicted murderer under sentence IN ths
state might apply for similar writ and h IN that case
as @aer tao OF Trs asote sh G to the
and as soon as this done all proceedings against
him. in any state court or 6S any state athorlS atssr
progress OF determination under the appeal o.. S.
Revised statutes, sections 1893. 764 766 % Statutes
Of the state would have been placed in q
very awkward dilemma because an appeal could
%er nSt De term the " United states Supreme Court
It seemed desirable. therefore 70 have the Question
aSWsd SUBJECT to ptses the with
FOR Kemmer that the question presented BY should
Court and that the writ should be vacated unless this
done and the action Of that az court , should
This has not been done and the supreme Court has
decided after argument and consideration that there was
no Federal question in the case and that the punish.
ment authorized by the state law Is not cruel ana
unusual in the legal sense II would. OF course, be
the duty Of this court follow that decision upon the
return day Of the WRIT and 1t will no longer serve any
useful purpose delay a disposition Of the proceeding
In order to render formal decision at the regular term
Of the court.
than the first dav OF the next stated term simply and
solely because it was doubtful II II could be without
ureiudcipg the rights OF the parties Casper Fftz
gerald 2i. T. s. SD. The interpositlon OF the power
Of this court between convicted criminal and the
authorities OF the State should end the moment 1t ap
pears to be longer necessary. The motion TO vacate
tho writ is