The morning news. [volume] (Savannah, Ga.) 1887-1900, 1890-05-25
KEMMLER'S LAST HOPE.
HIS COUNSEL MAY SAVE HIS LIFE
TILL FALL.

The Recent Resort to the Supreme
Court Made on an Original Applica-
ton for a Habeas Writ, and There
fore Not Recognizable as an Appeal.
Advantage May be Taken of the
Point.
WASHINGTON. May 24 - Although the
supreme court yesterday decided against
Kemmler on all the constitutional questions
which it is thought can be raised in his case,
it is not absolutely certain that the court
has heard the last of the case. 1t was the
general opinion that the decision yesterday
would finally settle the matter, and all that
would remain to be done would be pro
fornla vacation of the order Of Judge Wal
lace and the resentencing of Kemmler. II
may be that the counsel will stop here and
not further prolong what, in view of the
decision yesterday, must be regarded as
hopeless case, so far as the supreme court is
concerned.
FURTHER DELAY POSSIBLE.
But it is still possible to delay the day of
execution until next autumn at least by
bringing another appeal to the supreme
court. The situation is rather an interest
ing one. Whea Judge Wallace made his
order staying the proceedings in the
Kemmler case he did so on the understand
ing that the counsel would Immediately
apply to the highest tribunal for a writ of
habeas corpus and thus obtain a final de-
clsion upon the constitutional objections
raised against the proposed mode of execu-
tion.
JUDGE wALLACE's LIFE.
.TTdoro Wallace q bat I,.,- ,k,I
the writ solely in order to save the prisoners
life until the constitutional points at issue
could be decided by the supreme court.
This court declined to hear Lawyer Sher-
mans application for writ of habeas
corpus for the reason that it could not reg
ularly take notice of an original habeas
corpus in such case. Judge Wallace had
made no decision on a writ of habeas corpus
ana therefore there could be no appeal upon
which to allow the supreme court to act in
its appellate capacity.
HELPING SHERMAN OUT.
For the purpose, however, of securing
speedy determination of the questions in
volved, the court directed Mr.. Sherman to
make application for a writ of error from
the findings of the court of appeals of New
York. There was no substantial difference
in these two methods, the constitutional OBJ
jections which could be made on an appli-
cation for a writ of habeas corpus being
equally pertinent on an application for
writ of error, so that the decision
on one form of pleading would
really govern the case If brought up in the
other shape. The court having decided the
questions at issue against Kemmler, Judge
Wallace, when his writ becomes return
able on the third Monday in June will, of
course, rule against Mr.. Sherman on the
matter of a habeas corpus writ. 1t must be
borne in mind that it was not on an appli-
cation for a writ of habeas corpus that the
supreme court made its decision.
HOW DELAY IS POSSIBLE.
Now, under the law, an appeal from the
order denying a writ of habeas corpus to
the highest court in the country is matter
OF right, and cannot, under any circum-
stance, it is said, be refused. 1t will thus be
seen that the counsel have undoubtedly the
privilege of appealing from the decision of
Judge Wallace next month, and, as the
supreme court has adjourned for the term,
a hearing could not be had until next
October. OF the result of that hearing
there can be no doubt, for the court has
already decided against Kemlmer on all
points which could be raised.
THE QUESTION NOW AT ISSUE
Whether or not, in view of the fact that
the questions at issue have been settled: of
the understanding with Judge Wallace that
the supreme court decision should be ac-
cepted as final and of the probability that
the court would very severely censure the
bringing of such an appeal for the obvious
and sole purpose of delaying execution, the
counsel will still insist upon doing all that
they can to stave off the day of execution,
is the question which remains to be deter
mined.