The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1895-11-18
JUDGE HOUK'S IDEA.
A. L. Greene Says There Can be
No Hanging.
THE KANSAS LEGISLATURE OF 1872
Repealed the Law That Empowered
the Judge and sheriff to Hang a Man

Repealed the Law That Empowered
the Judge and sheriff Hang a Man
To the Editor of the State Journal:
read in your issue of 18th, Judge L.
Houk's opinion concerning the hanging
of the persons convicted of the murder
of Mayor Marsh of Kinsley, in which he
says: That under the law these parties
may be executed without an order
from the governor; that the county
attorney of the county where the
crime was committed, may go before the
district court of that county, make a
showing that the sentence has not been
executed, and obtain a writ of habeas
corpus upon which the parties may be
brought before the court, and if no legal
reason is shown to exist against the exc
cution of the sentence the court could is
sue an order to the sheriff commanding
him to execute the defendants
The gravity of the subject is my only
excuse for calling attention to what seems
to be the law, and however much l re-
spect the legal opinion of Judge Houk.
l think he is clearly wrong upon this
subject. The statute upon which he
bases his opinion has been repealed for
nearly quarter of century.
1t can be said, ard l think with credit
to the people of Kansas. that they are op-
posed to capital punishment, and in fact
to all kinds of punishment, for punish
ment's sake.
The doctrine of an eye for an eye and
a tooth for tooth, always cruel and bar
barous, ne yer had much of a footing in
Kansas.
Gathering wisdom from the experience
of ages, the people of Kansas came to be-
lieve that the highest idea of the crimi-
nal law is the reformation of the crimi-
nal and not his punishment Ard intend
ing to carry this idea into la w. the legis-
lature of 1872 repealed the law which
empowered the judge and sheriff to hang
a man, and now all they can do is to con-
vict, sentence and deliver him to the
warden of the penitentiary.
The law provides that when a convict
shall be sentenced to the punishment: of
death the court shall order the sheriff to
deliver him to the warden of the peni-
Tertiary, where he shall be kept at hard
labor within the walls of the penitentiary
until the warden receives an order from
the governor to execute him.
Under this law the warden has exclus-
i've custody and the right to the exclusive
possession of the convict until such order
is issued and upon the issuance of such
order it then becomes the duty of the
warden to remove the convict and place
him in close confinement until the date
of the execution, at which time either the
warden or some officer of the peniten-
tiary shall execute him.
1t is wholly within the discretion of
the governor to issue an order for the
execution, he cannot be compelled to do
so, and any successor of the present in
cumbent may exercise t1at discreet on
and order the convict hung. But until it
is exercised by some governor the war
den of the penitentiary has the exclu
sive right to the possession of the con-
vict.
Convicts are safe from any molesta-
ton by any writ of habeas corpus that
may be issued for the purpose of having
them executed.
Another reason why Judge Houk's po-
sition is wrong, is that no sheriff of Kan
sas has any more authority under the
law to execute one convicted of murder
than the judge who tried the cause; the
statute designates the warden of the pen
itentiary or soma of the officers of that
institution as the only person who shall
perform that duty and no one else has
any such authority.
A. L. GREENE,