Evening journal., 1890-05-21
KEMMLER'S LAST HOPE.
The Argument for a Writ oi
Error.
IS ELEcTROcUTION LAwFULs

Attorney General Tabor Claims That tho
Fourteenth Amendment Does Not Ap.
ply. and That the Question Is Purelys
State Question.
+ WARRINGTON, May oi-Roger M. Sher
mans application for writ of error in thu
kemmler case was argued before the United
States supreme court Tuesday. Mr.. Sher
man based his argument on the fourteenth
amendment to the federal constitution,
which provides that mo state shall mako
or enforce any law which shall abridce thu
privileges or immunities of citizens Of the
United States, nor shall any state deprive
any person Of life, liberty or property with.
out due process Of law, and on the eighth
amendment which provides that "crueE
and unusual punishments shall not be in.
flicted.n
Cruel and Unusual.
He held that death by electricity was
cruel and unusual and therefore without
due process Of law, and that the question
should properly be decided by the federal
courts. The provisions of the New Yorh
statute for solitary confinement for con.
cealment OF the day Of death from the pris,
oner, leaving its determination 10 the war
den, he claimed, were not to be sustained
BY the common law, but were In violation
Of the fourteenth amendments
Simply Tortured 30 Death.
He claims that by the proposed New
York method of eleotrocution man would
not be instantly killed mans resist
ance was greater than 23,10O ohms. IL
might easily be 100000 ohms. kemmIes
would simply be tortured If the current
contemplated was applied He would uIti-
mately die, but the interim would be tor
ture He might be cremated on the sur.
face 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 done9 1t was intended to have man
play hose on the sponges during tha
passage Of the current but this was aban.
doned because during the burning of soma
electrical works firemen had received
shocks while playing water ON the flames,
the water furnishing the conductor Now
1t was intended TO have water drop In soma
way on the sponges. He would like to
know how 1t was to be done without dam
ger.
His Closing Appeal.
Mr.. sherman, in conclusion, referred to
the fact that Judge Wallace, whom ha
called humane, eminent and learned
Judge, well aware of the unsettled condi.
tion of several questions involved in the
case, had held by the granting Of a writ OF
habeas eorptis TO hemmier under circum-
stances Of exceptional dellcacy and hui
manity That at least proper case was
presented for judicial consideration Ha
confidently believed that he would not re-
ceiye the unmerited rebuke Of decision
by the court that there was no serious fed
cral question in the argument submitted
by him.
Attorney General Tabor's Argument.
Attorney General Tabor, who appeared
In behalf Of the state Of New York, In
opening his argument referred 10 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
kemmler a chance for life
Mr. Iabor's argument consisted princf-
| pally Of copious references 10 decisions
concerning the fourteenth amendment He
laid much stress on an opinion delivered
| by Justice Miller. OF the United States
supreme court, containing the statements
that there exists some strange misconcep-
tion Of the scope Of the fourteenth amen.l-
ment Quoting from the decision, he real;
In fact il would seem from the character
Of many the cases before us, and the AZ
guments made in them, that the clause
under consideration is looked upon as a
means Of bringing to the test Of the decf-
sion Of this court the abstract opinions OF
every unsuccessful litigant IN state court
Of the justice Of the decision against him.
and Of the merits of the legislation ON
which such decision may be founded -
The Amendment Did Not Apply.
The fourteenth amendment, he claimed.
was not applicable in 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
We're regulated by the states themselves
| For two years the controversy over the ex-
| ecution Of kemmler had been going ON.
! Five men were held for murder ia the
state, but could not be executed because of
| the litigation. The state Of New York he
said, wanted TO know where it stood as to
| the execution of criminals. AS for the
sixth clause concerning cruel and unusual
| punishment that provision was the same
in the constitution of the state Of New
York as it was ia the federal constitution
An Unnecessary Proceeding
The testimony in the New York court OF
appeals was referred to by Nir. Tabor and
extracts from the opinions Of the judges OF
the court on the case were also read In
conclusion be stated that in view Of what
these judges had said it would seem to be
an entirely unnecessary If not an improper
proceeding upon the part OF the supreme
court to read and examine a thousand
pages OF testimony for the simple purpose
Of discovering whether all Of the state
courts were not wrong in regard to the
admitted question OF fact He Thoughts
that che motion for writ of error should
be summarily dismissed.
Mr., Sherman made brfaf additional
statement after Mr. Tabor had finished
The court reserved its decision and adj
| iourned until Friday
Mrs. Parnen Victorious.
| PHILADELPHIA Nav 2l,-The master in