In Re Kemmler, 136 U.S. 436 (1890)

In re Kemmler

No. 13 Original

Argued May 20, 1890
Decided May 23, 1890
136 U.S. 436

ORIGINAL

Syllabus

Ex parte Mirzan, 119 U.S. 584, affirmed and applied.

A writ of error to the highest court of a State is not allowed as of right, and ought not to be sent out when this Court, after hearing, is of opinion that it is apparent upon the face of the record that the issue of the writ could only result in the affirmance of the judgment.

Chapter 489 of the Laws of New York of 1888, which provides that

the punishment of death must in every case be inflicted by causing to pass through the body of a convict a current of electricity of sufficient intensity to cause death, and the application of such current must be continued until such convict is dead,

is not repugnant to the Constitution of the United States when applied to a convict who committed the crime for which he was convicted after the act took effect.

On the 5th May, 1890, Mr. Roger M. Sherman filed a petition for an original writ of habeas corpus on behalf of Kemmler, accompanied by a statement in which he said:

This is a motion for an original writ of habeas corps.

The petitioner is under sentence of death in the Northern District of New York, under a statute of New York which imposes the punishment of death by the passing through his body of a current of electricity sufficient, in the opinion of the warden of the State Prison, to cause his death, which current is to be continued until it kills him; the statute also leaves it to the warden to fix the day and hour of his death, and contains other features which he here asserts are in violation of the Fourteenth Amendment. These features abridge his privileges and immunities as a citizen of the United States and deprive him of his life without due process of law.

Judge Wallace has granted a writ, in the emergency, to afford an opportunity to make this application. The case having been passed upon under the state Constitution by the Court of Appeals, it is suggested that an original writ here is proper.

The petition, an affidavit showing the emergency, the opinion of the Court of Appeals of New York, and the state statute are herewith submitted.

The Court at once gave him a hearing, and, when he had concluded it, announced its judgment.

PER CURIAM. This case is governed by the rule laid down in Ex parte Mirzan, 119 U.S. 584, and, inasmuch as the writ of habeas corpus has been granted by the Judge of the United States Circuit Court, and the case is proceeding to a hearing there, we must

Deny the application.

It was then suggested by MR. JUSTICE BLATCHFORD, to whom an application had been made for a writ of error to the Court of Appeals of the State of New York to bring up Kemmler’s case, that the application should be made to the full Court, to be heard on the 19th of May, and notice thereof be given to the Attorney General of New York, and a corresponding order was made.

The 19th of May passed without hearing this motion. On the 20th, it came up and was heard.