St. Paul daily globe., 1890-11-22
BURNING AT THE WIRE
Sequel to the Kemmler Case
Before the Federal Su-
preme Court,
1t Is Asserted That Electrocu-
tion Is the Acme Of
Cruelty.
This Was Shown by the KILL
ing Of the Buffalo Mup-
depeP.
Learned Judges Inclined to
Stick to Opinions Given
Months Since.


the Japanese. Shibuya JugirO, who is
confined in Sing Sing prison, New
York. under sentence of death by means
of electricity, was argued before the
United States supreme court to-day.
The case comes here on appeal from
decision of the United States circuit
court for the Southern district of New
York declining the writ of habeas cor
puS which counsel for JugirO had
sought to obtain to compel Warden
Brush to release the prisoner. The
question at issue is the validity of the
New York electrCcutiOn law, and the
case is sequel to the Kemmler eXecu-
ton. Roger NJ. Sherman, who was coun-
sci for Kemmler, and who now rep
resentS Jugiro, bases his application for
a writ of habeas corpus on the ground
that the execution of kemmler demon
Strated that electrOcutiOn was not an
instantaneous and painless method of
death. 1t is asserted that New York
violates the federal constitution forbid
ding "cruel aud unusual punishment"
and is for that reason unconstitutional
and void. Attorney General Tabor rep
resentS the state and Mr.. Sherman the
prisoner. Mr.. Sherman opened the
argument with the assertion that this
gradual burning at the wire instead of
the stake' is a
Refinement Upon All Cruelty
which has ever been devised. He then
took up the decision IN the Kemmler
case, and said that the present case diff
fered from that in this, that the queS-
ton presented was the mode i'll which
the state threatened to deal with JugirO
under a construction of the statute
which the court has declared valid.
He cOntended that tha: construction,
besides being erroneous, imposed upon
Juglro cruel and unusual punishment,
exactly the same in Its consequences
TO him as if the state itself in terms
prescribed these t0rtures. Justice Field
at this point interrupted the argument,
and asked If 1t were cOunSePS COnten-
tiOn that, assuming the law to he valid, it
was TO be executed in an unlawful way.
Mr.. Sherman responded that that was
his primary contention in the case aud
that he was fortified i'll his view by a
decision in a Virginia crse. He then
took up the Kemmler case and declared
that the experience at that execution
established the fact that death by means
of electricity as proposed by the New
punishment and deprived the person
under sentence of life without that
due process of law" contemplated by
the constitution. He continued to press
the point that electrocution was cruel
and unusual punishment, when Justice
Field asked If that WAS not the objec-
ton counsel had urged in the Kemm-
Ter case. MIR. Sherman said it was,
but that since then the execution mad
taken place and there had been prac-
tical illustration of the fact that the Oh
JectionS raised to this mode of death,
proposed by the New York statute. were
well founded, and that the theory upon
which the law was based was un-
founded. The court of appeals had
sustained the statute in the Kemmler
case upon the statement that the
Application of Electricity
in the mode prescribed must result in
instantaneous and painless DEATH"
The Kemmler execution. he averred,
demonstrated that this was not the fact,
means about to be employed in Jugro's
case were not capable of producing in
Simultaneous death, as the statute con-
templated.
Justice Fields there any question
that electricity, if sufficiently intense,
If kept up without interruption, will
produce practically instantaneous
death?
MIR. Sherman-On the contrary there
is grave reason to doubt whether arti-
fetal electricity, generated under pres
enl scientific conditions, will Invariably
cause immediate death, and we cite the
Kemmler case.
Justice Brewer-AS matter of fact
xyoc not KamD1fpr dpad in ahonf four
and half minutes?
Justice Field-''It has got to be fact
that electricity sufficiently strong to
produce instant death cannot be Sc
cured, to bring the case here;" and the
justice added: lin hanging bad machin-
cry, too light weights. and bad rope may
cause torture-that is a mere bungling
execution of the law"
MIR. Sherman-This case is different,
l think. If should come here and saw
1.-THE rope is rotten" your honor would
say: I'VE must presume the state will
provide strong rope" But here is a
new and peculiar mode of killing man
by force which is governed by patents.
Now. owners of these patents do not
want the sale of their inventions re-
Stricted by the use of them in this man.
ner. The state is not in the position of
merely having to buy strong rope. 1t
may be the patents will expire some
years hence, and the state can then go
into the business of making dynamos.
But, 1t seems to me sufficient
now to show that the only
apparatus the state has got,
and which it applied to Kemmler, has
turned out TO be insufficient for the pur-
pose and violates the statute. Counsel
next made the point that the threat
enpd Ipf1ictiOn 0OOfravansc tbQ pypracc
command of the statute by substituting
an ''ihterrupted'' for continuous
current. and then read at much length
descrip tion of the scenes at
Kemmler's Execution,
the manner in which the electricity af-
fected him and the results OF the au-
topsy,. for the purpose of showing that
the theory upon which the law was
practical workings, and that there
was reason to question whether ex-
ecution by electricity did not pro-
duce greater pain than hanging.
The proposition was then advanced
whether, if Jugiro could make good his
allegations that the proposed method of
death was unlawful. the state of New
York could. under that statute. i'm
prison him for life, the sentence of
death being still in full force. Mr.
Sherman had been diverted from the
order of his argument by the questions
of the justices, and when he again made
the assertion that no means of arti-
ficially generating electricity now
known can produce any other result
than torture, and that the statute itself,
therefore, was unconstitutional, his
statement was again questioned, and
Justice Field said he supposed it was all