Graham guardian., 1914-01-23
JANUARY 90, 1911
SIMILAR CASE TO ARIZONA

0aVlkLftN SfASI ~ rAhNA~N(ANH
In the State of Oklahoma, the
Governor, acting on the theory that
capital punishment is judicial mur-
der, has been setting aside the death
sentence by commuttion, the laws
of the state notwithstanding.
This action, says the Tucson Citizen.
Is discussed at some length in recent
decision of the Supreme Court of
that State and what the Supreme
Court of Oklahoma says about the
Governor of that commonwealth APP
plies equally to Governor Hunt of
Arizona, for both have been pursu-
ing the same course in reference to
criminals under sentence of death.
"No official of Oklahoma has the
shadow of a right to set aside or disre-
gard the laws of this state, as matter
of whim or caprice. Officials should
set an example of obedience to law. If
they disregard the law, how can they
blame the people for taking the law in
to their own hands2 The Governor is
without the lawful right to set aside
and nullify the law inflicting the death
penalty for crime in all cases upon the
ground that he is opposed to capital
punishment.
Discussing the subject further in
the body Of the decision. the Court
says:
at is a matter known to all persons
of common intelligence in the state of
Oklahoma that the Governor takes the
position that legal executions are judicial
murder; and that he refuses to permit
them to be carried into effect upon the
ground that he would thereby become a
party thereto. As this is capital con-
viction and as the Governors action
presents an absolute bar to the enforce
ment of the law of Oklahoma, we can
not, without failure to discharge our
duty, omit to take judicial notice of,
and pass upon, this position. of the
Governor, as unpleasant as it is for US
to do so. II we remained silent, the
Governor and the people would have a
right to think that we acquiesced in
this position he has assumed.
''There is no provision of law in Okla
homa which requires the Governor to
approve verdict assessing the death
penalty before it can be executed. His
duty with reference to such verdicts is
negative and not affirmative. He has
nothing whatever to do with them, un-
less he may be satisfied that an injustice
has been done in an individual case;
then he may commute the sentence or
pardon the offender; but this can only
be done upon the ground that, upon the
facts presented, the defendant was a
fit subject for executive clemency, and
that an exception should be made in his
favor as against the general rule of law.
1t is not true that when defendant
is executed according to law the Cover
nor is in any way responsible therefor.
The execution takes place in obedience
to law and not because the Governor
orders 1t; and the Governor has not a
shadow Of legal or moral right to inter-
fere with the law, unless he can say
upon his official oath that special rea-
sons, applicable alone to the given case
before him, justify such action. The
Governors alleged conscientious scru-
capital punishment cannot lawfully
justify his action in wholesale COM
mutation of death penalties. The Gov
ernor has no legislative powers at all;
he can neither enact or repeal laws
either directly or indirectly, which he
does attempt to do when he sets aside
the death penalty in all murder cases.
The law recognizes the fact that some
a.. q L.
infection Of capital punishment, but il |
prohibits such persons from passing
upon this question. The law is as fol- |
lows: If the ofense charged be punish |
able with death, the entertaining of
such conscientious opinions az would |
preclude his finding the defendant guilty, |
In which case he shall neither be per- |
mitted nor compelled to serve as a
the Governor from committing death |
penalty, in single case, upon the |
ground Of his alleged conscientious |
scruples. So il is seen that he is not |
only not compelled to approve such |
verdict, but that he is positively for
hidden by law to allow his scruples to |
influence him in the least in his action. |
II would indeed be an idle thing for the |
Legislature TO enact law and then |
make its execution depend upon the |
whim or caprice Of any juror or Cover
nor. II the Governors position is cor
rect, then we do not have a government |
of law in Oklahoma, but government |
of men only. II il were necessary for |
the Governor 10 approve such verdicts |
before they could be carried into execu- |
ton, then the Governor should have
made his views known before he was
elected, and he should have refused to |
take the oath Of office. There is no
logical escape from this conclusion. The |
Governors position can only be ex-
planned upon the hypothesis that he
imagines himself to be dictator, and
thas his win Is supreme and above the