Pittsburg dispatch. [volume] (Pittsburg [Pa.]) 1880-1923, 1890-05-06
ESPECIAL rELEeRAN TO THE DIsPArcH.i

condemned murderer William Kemmler,
sentenced to death by means of electricity,
has now reached the Supreme Court of the
United States, and bids fair to become
noted one in legal history. Roger NJ. Sher-
man, Kemmler's lawyer, arrived here from
New York early this morning. He was not
at all sanguine that writ would be granted,
feeling confident that the court would
promptly meet the motion with the prece-
dent Of their decision in the Merlin case,
in which it was decided the court would not
grant a writ of habeas corpus except in
cases Of peculiar and pressing necessity.
Mr.. Sherman was satisfied, however, that
his case is now in such a condition that no
further steps in the direction of Kemmler's
execution can be had, at least until the Oc-
tober term of court. As to the exact status
Of the case, now that the writ has been re-
fused, Mr.. Sherman says: 'If the Supreme
Court have deemed the question trivial one
they would have Summarily denied the ap-
plication on its merits. They have, however,
simply decided that as a writ is properly
pending in the United States Circuit Court,
which stays the execution and which they
have appellate power to review, they will
not interfere. The writ must now be heard
by Judge Wallace. The writ of error does
not dispose of the proceedings There is
much evidence to be taken OF matters oc-
curing since the evidence in the States
courts was closed, and Judge Wallace will
have newer and more recent light on the
subject.
SAFE UNTIL OCTOBER.
"It appears impossible that . final de-
cision can be reached before the next Octo-
Der term of the Supreme Court" 1t was
not generally known that the motion was to
be made to-day in the Kemmler case, and
consequently there were very few lawyers
or spectators in the Supreme Court chamber
when it was presented. Assistant Attorney
General Mauray was there, and also Enoch
Totten, George Appleby and one or two
more prominent members of the Washing
ton bar. There was a full bench every
member of the court being present. A
batch Of decisions were handed down imme-
diately after the court met, and then Mr..
Sherman arose. He proceeded to argue
that prima facie case was presented of
violation of the Fourteenth Amendment.
He said: "It is unnecessary to argue
that the eighth amendment was originally |
restriction upon the powers of the States. |
The fourteenth amendment requires that |
the States shall proceed by due process of |
law, and a cruel and unreasonable punish |
ment cannot be the process of Law, even if |
there had been no eighth amendment. The |
mode OF killing by electricity is, beyond all |
question, unusual. Any infliction of death |
is cruel. Who knows or can know that the |
terrible stroke which expels the soul from |
the body is not cruel and intense in its an
gulsh in a greater measure as its result is
swift? Theories as to the relative speed of
the nervous fluid and the lightning are mere
theories. The law of nature has made pain
the warning, and to that end the accom-
paniment of violent death.
AN UNKNOWN DEATH PENALTY,
at might suffice to say that this mode of
killing be at once cruel Chow cruel and to
what degree is of no consequence and un-
usual, the punishment was unconstitu-
tional.''
At this point in the argument Mr.. Justice |
Field asked: It's not death by electricity |
instantaneous, and therefore painless?''
Mr.. Sherman replied: cit appears from |
the great mass of scientific testimony taken |
in the State corrts that it is conceded even |
by the advocates of this law that the oues- |
tion whether the application of a current of |
electricity is painless, or whether, |
on the contrary, it insinuates into |
the nerves and vital fluids and |
forces is the most exquisite, penetrating and |
disintegrating torture which the ingenuity |
II man has ever devised, depends upon the |
scientific conditions applied. The whole |
matter instead of being dealt with by the |
law is developed upon the unreguIated dis |
cretion of the keeper of prison. The law |
does not require him to be Mr. Edison, or |
Prof Bell, or Mr.. Westinghouse or Prof |
Tyndall or any other expert electrician. He |
may consistently with any mandate of the |
law be without scientific attainments and |
without any capacity to determine inteIIi- |
gently between conflicting scientific claims. |
Therefore, if he determines in his discre- |
tion that he will begin OF the first hour of |
the week by the application of a current of |
say 800 volts, although if that current does |
not Immediately kill it must be inevitable |
torture to the victim, nevertheless this law
gives the warden no discretion but to con-
Jinue that current until it does kill, r.ro-
vided only that it kills within the week |
There is some scientific authority for the |
view that 800 volts will kill, and the war
den is at liberty to accept that authority, |
even though all the experts whom the Court /
would think fit to speak should insist that |
the application of such a current would be
more torture"
THERE is NO PRECEDENT.
The evidence taken, he said, be had
ready to submit to the court, and he urged
that the Court should consider it. The
Court of Appeals, he argued, "had totally
mlsconceived the question of the effect of
the scientific proofs, there was here no issue
of fact whereby to determine by copsidera
lions of the burden of proof whether a
statute should stand or fall. The cases
cited to that point were wholly irreyelent.
The proper view of the bearing of evidence.
he continued, was as follows: Here was a
case where the Court itself not having
the scientific information which in law it
must be considered to have and being
obliged to take judicial notice of the effect
of this punishment properly informs it
self by means as it sees fit upon the sub
ject the information so Neceived becomes
part of judicial knowledge. The supposed
investigation Of the Legislature does not in
clude the court. If the court as a matter
of law should determine that the statute
within its lawful operation, according to Its
terms can sanction torture its duty is TO
condemn the statute. Thus it is said that
courts will take judicial notice Of the course
of nature. Mr.. Sherman here cited various
authorities)
''It has been held bv this court that
where judge must take judicial notice he
may inform himself very much at his dis
cretion. A reference to the testimony shows
that the prisoner is subjected to the risk of
torture, and under the best scientific condi-
lions and chances to be adopted and sue
cessfully used by the Warden, the prisoner
as in absolute certainty of torture %
AT THE wARDEN's DISCRETION.
He referred to the testimony of Warden