The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1895-11-12
MAY HANG ANYHOW.
Judge Vandivert Can Order
Kinsley MurdererS Hung.
Judge Houk Points Out the
Statutory Provision.
NOW WILL HE Do IT?
When the Governor Refuses, the
Judge Can Execute.
Capital Punishment Made Op-
tional With the County.

HUTCHINSON, Nov. 10. - Judge /.
Houk, of this city, one of the ablest law
yers in Kansas, and who was formerly
judge of this judicial district, holds that
the law of the state is such that the
Kinsloy murderers. Carl Arnold and
William Harvey, and all other death
condemned criminals in the Kansas
penitentiary. can be executed upon mo-
tion of the county attorney.
Judge Vandivert himself can execute
the death sentence to the two young men
whom he condemned for the murder of
the mayor of kinsley.
This provision, cited by Judge Houk,
has been overlooked by the lawyers of
Kansas.
The law provides that when man is
convicted of murder in the first degree
he shall be sentenced to death, by the
judge, as in other states, with the excep-
tion that he is to be kept in the state
prison until the governor sees fit to exc
cute the sentence. 1t is also provided
that the prisoner must remain in the
state prison one year before the governor
can pass upon mis- case, or in other words
before the man be executed he must
remain one year in the penitentiary,
after that, if the governor should con-
clude to sign the death warrant, the man
would have thirty days notice.
Then follows the provision which
Judge Houk points out. 1t is found in
section 270, general statutes of Kansas,
and in substance it reads as follows:
when for any reason the governor
fails to execute the sentence. after a
reasonable time, the county attorney of
the county in which the crime was COM
mitted may appear before the supreme
court or the district court of the county
in which the crime was committed, and
apply for a writ of habeas corpus di
rected to the warden of the peni-
tentiary to deliver the prisoner to
the sheriff of the county to be
taken before either the supreme court
or the district court, that inquiry may
be made as to why the sentence of the
court should not be executed. In case
no legal cause shall be shown why the
sentence shall not be executed, the judge
may issue his order to the sheriff and
the sheriff shall execute the sentence"
The 1aw is plain and cannot be mis-
taken, and upon this Judge Vandivert
and the county attorney of Edwards
county can legally hang the men who
murdered tho mayor of Kinsley, in the
county where the deed was committed,
without the action of the governor.
The section pointed out by Judge Houk
removes tu6 INV lfOuI tHe OtAluu4 VI COW-
ardice, which has been placed to its
charge. 1t clearly shows the governor is
not the lord high executioner, but that
the responsibility rests equally upon the
county attorney and the judge.
It is believed by attorneys who have
had Judge Eouk's opinion read to them
today that Vandivert will have them
brought back for execution.
In order to prevent Arnold and Har-
vey from being lynched by an infuriated
mob, Judge Vandivert OF that district as
sured the mob that he would 60 in per
son before the governor of the state and
urge the executive to exercise his au-
thority and sign the death warrant of the
two youthful murderers- True to his
promise, Judge Vandivert went before
Governor Morrill, and asked that the two
condemned ones should be hung. This
the governor refused to do.