The Topeka state journal., 1897-10-13
OUGHT WE TO HANG men
David OVermyer Believes Capt.
tai Punishment ustifiabIe
In Certain Cases, But No Kan
sas Governor
CoUl Undertake it With the Laws as
They Are-Opinions of DR.. En-
bree, Judge Horton
and Others.

Capital punishment for crime finds a
champion in David Overmyer. He says:
Il am in favor of capital punishment
in cases of murder in the first degree.
1 would not be in favor OF having hang
ing bee and hanging the convicts now in
the penitentiary. They are there because
Of the construction given many years ago.
by executive usage. to the statute gov
erning capital punishment, and 1 doubt
whether any governor could lawfully or
der any execution TO take place, except
in such cases as are certified 10 him Of
hcially from the court making the con-
Viction. Section 1926 of the general stat
utes is as follows: Whenever any convict
shall be sentenced to the punishment of
death the court shall cause to be made
out, sealed and delivered to the sheriff
of the county a warrant, stating such
conviction and sentence, and an order in
structing the sheriff of the county to con-
vey such convict to the penitenJiary and
to deliver the said convict to the warden
thereof, to be by him safely kept until
the time fixed for his execution. as here
matter provided, and a certified copy of
such warrant shall be by the clerk forth
with transmitted to the governor of the
state
Thus it will be seen that when
ever the death sentence is passed
in court. official notice of the
fact is sent to the governor under seal
Of the court. Such cases are the only
ones in my judgment. in which the gov
ernor has power to act.
The following provision of the statute
shows what the governor must do: The I
punishment of death prescribed by law /
must be inflicted by hanging by the neck /
a such time as the governor of the state
may appoint. not less than one year from 4
the time of conviction
THE section quoted would seem to
make it the duty of the governor to act /
without hinching, but the following sec /
ton. 532S, has introduced confusion into /
the practice until, by a sort Of executive /
construction. death sentence has come /
to mean simply indefinite imprisonment
Section 1928 follows: The governor !
shall keep in his office a record of all /
warrants of conviction and sentence re /
ceived by him as aforesaid and any gov
vernon Of the state. for the time being. !
shall in his discretion. at any time not
less than one year from the time of con- !
viction of each convict, respectively make /
an order fixing the day upon which the I
sentence of the law shall be carried into /
effect. which time shall be al least thirty !
days from the issuance of such order, /
which shall be directed to the warden of
the penitentiary. to be by him executed;
PEELED to issue any order as herein pro-
vided for the execution of any convict.
whether convicted in his term or in that
of his predecessors, nor shall he be linn
tied in issuetng any such order TO such
convicts as have been convicted during
his term of office
This section continued Mr.. Overmyer,
provides that the governor may or may
not issue his order for the execution of
the sentence of the court. 1t also says
he shall not be limited to convicts con-
victed during his term of office. But
where one governor has received notice
of conviction and has not acted. I doubt I
very much whether that latter clause OF
the statute could be acted upon. There
would be room to give effect as applied
to cases of conviction which might be
certified to him in his term, and in the
interests of life the gentest possible con
struction would undoubtedly be given the
statute.
But aside from this, the whole tenden-
cy of section 1929 is to place the burden /
upon the governor. whether man who is
under conviction of high crime shah
live or die It is not wonderful
that the first governor who acted under
this law declined to issue the order. The
law expressly said that he need not do
so if he did not want to. To issue the
order was to say to the world that he
wanted to do so. To say to the world
that he relished the taking of life. Ger
tainly no humane man would feel like do
ing this. and as the first governor declin-
ed to do it. that made it stin harder for
the next to do so. and one after the
other of many governors failed TO do so.
executive custom became almost d law, SO
it seems 10 me that it would require an
degree of hardihood in any
governor to begin now.