McElvaine v. Brush
| Decision Date | 21 December 1891 |
| Citation | 142 U.S. 155,12 S.Ct. 156,35 L.Ed. 971 |
| Parties | MCELVAINE v. BRUSH |
| Court | U.S. Supreme Court |
Geo. M. Curtis, for appellant.
Chas. F. Tabor, Atty. Gen. of New York, for appellee.
Charles McElvaine was convicted in the court of sessions, Kings county, in the state of New York, on October 23, 1889, of the crime of murder in the first degree, committed August 22, 1889, and on October 25, 1889, was sentenced to death. From the judgment of conviction an appeal was duly taken by McElvaine to the court of appeals of the state of New York, where the judgment was reversed, and a new trial granted. People v. McElvaine, 121 N. Y. 250, 24 N. E. Rep. 465. A new trial was had, and resulted on September 29, 1890, in a conviction for the aforesaid crime, and on October 1, 1890, McElvaine was again sentenced to death, A second appeal was taken to the court of appeals, and the judgment was affirmed February 24, 1891. People v. McClvaine, 125 N. Y. 596, 26 N. E. Rep. 929. The court of appeals sent down its remittitur to the court of sessions to enforce the judgment, as rendered against McElvaine, according to law, and thereafter the judgment of the court of appeals was made the judgment of the court of sessions. On March 6, 1891, it was ordered and adjudged that the judgment of conviction and sentence thereon of October 1, 1890, be enforced and executed in the manner provided by law during the week beginning on Monday, the 20th of April, 1891; and the court issued its warrant under the hands of the judges thereof (including the presiding judge) to the agent and warden of Sing Sing prison, commanding him to execute said judgment and sentence, by putting the condemned to death, 'in the mode, manner, and way and at the place by law prescribed and provided.' April 21, 1891, McElvaine, by his attorney, presented to the judge of the circuit court of the United States for the southern district of New York a petition praying that a writ of habeas corpus issue to Augustus A. Brush, the then agent and warden of Sing Sing prison, requiring him to produce the body of said McElvaine before said court at some time to be designated in said writ; and afterwards such proceedings were had that on said 21st day of April, 1891, an order was made denying the prayer of said petition, from which order McElvaine appealed to this court, which appeal was allowed by the said judge; and the clerk of the court was directed to transmit a transcript of the petition, decision, and order thereon, and of the appeal. This transcript was accordingly transmitted, and, by stipulation, is accompanied by a certified copy of the warrant for McElvaine's execution.
We have examined and considered all the grounds alleged in the petition for the allowance of the writ, but deem it unnecessary to refer to any, save those presented in the brief and argument of petitioner's counsel. Sections 491 and 492 of the New York Code of Criminal Procedure are as follows: ...
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