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

Citation:136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519
Party Name:In re KEMMLER.
Case Date:May 19, 1890
Court:United States Supreme Court
 
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136 U.S. 436 (1890)

10 S.Ct. 930, 34 L.Ed. 519

In re KEMMLER.

United States Supreme Court.

May 19, 1890

Petition for a writ of error. For former reports, see 7 N. Y. Supp. 145; Id. 813; 24 N. E. Rep. 6; Id. 9.

COUNSEL

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[10 S.Ct. 930] Roger Sherman, for petitioner.

Chas. F. Tabor, Atty. Gen., for respondent.

OPINION

FULLER, C. J.

This is an application for a writ of error to bring up for review a judgment of the supreme court of the state of New York, affirming an order of the county judge of Cayuga county, remanding the relator to the custody of the warden of the state-prison at Auburn, upon a hearing upon habeas corpus. The judgment of the supreme court was entered upon a judgment of the court of appeals of the state of New York, affirming a reprevious order of the supreme court. The application was originally presented to Mr. Justice BLATCHFORD, and, upon his suggestion, was permitted to be made in open court, and has been heard upon full argument.

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 the court in session, 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. Spies v. Illinois, 123 U.S. 131, 8 S.Ct. 21. The writ of habeas corpus was allowed on the 11th day of June, 1889, and made returnable before the county judge of Cayuga county. The petition was filed by one Hatch, and stated 'that William Kemmler, otherwise called John Hort, is imprisoned or restrained in his liberty at Auburn state-prison, in the city of Auburn, county of Cayuga, state of New York, by Charles F. Durston, agent and warden of Auburn state-prison, having charge thereof; that he has not been committed [10 S.Ct. 931] and is not detained by virtue of any judgment,

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decree, final order, or process issued by a court or judge of the United States, in a case where such courts or judges have exclusive jurisdiction under the laws of the United States, or have acquired exclusive jurisdiction by the commencement of legal proceedings in such a court; nor is he committed or detained by virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction, or the final order of such a tribunal, made in the special proceedings instituted, for any cause except to punish him for contempt, or by virtue of an execution or other process issued upon such a judgment, decree, or final order; that the cause or pretense of the imprisonment or restraint of said William Kemmler, otherwise called John Hort, according to the best knowledge and belief of your petitioner, is that he was indicted by a grand jury of Erie county for murder in the first degree; that he was tried therefor at a court of oyer and terminer of Erie county, and found guilty thereof by the verdict of a jury on the 10th day of May, 1889; that thereafter, and on the 14th day of May, 1889, he was arraigned in said court of oyer and terminer for sentence; that, contrary to the constitution of the state of New York and of the United States, and contrary to his objection and exception, duly and timely taken in due form of law, he was sentenced to undergo a cruel and unusual punishment, as appears by a copy of the pretended judgment, warrant, or mandate hereto annexed and made a part of this petition, and marked 'Exhibit A,' by virtue of which such imprisonment or restraint is claimed to be made; that he is deprived of liberty and threatened with deprivation of life without due process of law, contrary to the constitution of the state of New York and of the United States, and contrary to his objection and exception thereto, duly and timely taken. The imprisonment is stated to be illegal because it is contrary to the provisions of each of said constitutions.' The warden of the Auburn stateprison made the following return: 'First. That I am the duly appointed and acting warden and agent of the Auburn stateprison, and on the said 11th day of June, 1889, and before the said writ of habeas corpus

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was served upon and came to me, the said William Kemmler, otherwise called John Hort, was and now is in my custody and detained by me in the stateprison at Auburn, in the state of New York, under and by virtue of a judgment of the court of oyer and terminer of the state of New York, held in and for the county of Erie, on the 14th day of May, 1889, duly convicting the said William Kemmler, otherwise called John Hort, of murder in the first degree. A true copy of the judgment roll of the aforesaid conviction is hereto attached as a part hereof, and marked 'Exhibit A.' And said William Kemmler, otherwise called John Hort, is also detained in my custody as such warden and agent, under any by virtue of a warrant signed by the Hon. HENRY A. CHILDS, the justice of the supreme court before whom the said William Kemmler, otherwise called John Hort, was, as aforesaid, duly tried and convicted, and which said warrant was duly issued in pursuance of the aforesaid conviction, and in compliance with the provisions of the Code of Criminal Procedure relating thereto, to, a copy of which said warrant is hereto annexed as a part hereof, and marked 'Exhibit B.' Second. And I, the said Charles F. Durston, agent and warden of Auburn state-prison, do make a further return, and allege, as I am advised and verily believe to be true, that the said William Kemmler, otherwise called John Hort, was not sentenced, as hereinbefore set forth, to undergo a cruel and unusual punishment, contrary to the provisions of the constitution of the state of New York and the constitution of the United States. And I do further allege that the said...

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