In re Kemmler

CourtUnited States Supreme Court
Writing for the CourtFULLER; From this judgment of the supreme court an appeal was prosecuted to the court of appeals, and the order appealed from was affirmed. It is said in the opinion by O'BRIEN
Citation136 U.S. 436,34 L.Ed. 519,10 S.Ct. 930
Decision Date19 May 1890
PartiesIn re KEMMLER

136 U.S. 436
10 S.Ct. 930
34 L.Ed. 519
In re KEMMLER.
May 19, 1890.

[Statement of Case from pages 437-438 intentionally omitted]

Page 438

Roger Sherman, for petitioner.

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

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 Sup. Ct. Rep. 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 i lliam 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 and is not detained by virtue of any judgment,

Page 439

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

Page 440

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 undr go 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 imprisonment and restraint of the said William Kemmler, otherwise called John Hort, and the deprivation of his liberty and the threatened deprivation of life, are not without due process of law, and are not contrary to the provisions of the constitution of the state of New York or the constitution of the United States, as alleged in the petition upon which said writ of habeas corpus was granted. I do further allege, as I am advised, that the said judgment of conviction hereinbefore set forth, and the aforesaid

Page 441

warrant, and the punishment and deprivation of liberty, and the threatened deprivation of life, of the said William Kemmler, otherwise called John Hort, thereunder, are fully warranted by the provisions of chapter 489 of the Laws of 1888, which is a valid enactment of the legislature of the state of New York, and it is not in conflict with or in violation of the provisions of the constitution of the state of New York or the constitution of the United States. And I hold the said William Kemmler, otherwise called John Hort, under and by virtue of no other authority than as hereinbefore set forth.' Copies of the indictment of Kemmler, otherwise called Hort, for the murder of Matilda Zeigler, otherwise called Matilda Hort, the judgment and sentence of the court, and the warrant to the warden to execute the sentence were attached to the petition and return. The conclusion of the warrant, pursuing the sentence, was in these words: 'Now, therefore, you are hereby ordered, commanded, and required to execute the said sentence upon him, the said William Kemmler, otherwise called John Hort, upon some day within the week commencing on Monday, the 24th day of June, in the year of our Lord one thousand eight hundred and eighty-nine, and within the walls of Auburn state-prison, or within the yard or...

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510 practice notes
  • Williams v. Treen, No. 80-3792
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 31, 1982
    ...and unusual punishment. See, Gregg v. Georgia, 428 U.S. 153, 169-173, 96 S.Ct. 2909, 2923-2925, 49 L.Ed.2d 859 (1976); In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 933, 34 L.Ed. 519 (1890); Wilkerson v. Utah, 99 U.S. 130, 136, 25 L.Ed. 345 (1879); see also, Granucci, "Nor Cruel and Unusu......
  • Dawson v. Kendrick, Civ. A. No. 78-1076.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • August 10, 1981
    ...needs will not be met. In the worst cases, such a failure may actually produce physical "torture or a lingering death," In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 supra, the evils of most immediate concern to the drafters of the Amendment. In less serious cases, denial of medic......
  • Baze v. Rees, No. 07–5439.
    • United States
    • United States Supreme Court
    • April 16, 2008
    ...an electrocution statute it was upholding “was passed in the effort to devise a more humane method of reaching the result.” In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 34 L.Ed. 519. P. 1530. (c) Although conceding that an execution under Kentucky's procedures would be humane and constit......
  • U.S. v. Quinones, Docket No. 02-1403(L).
    • United States
    • U.S. Court of Appeals — Second Circuit
    • December 10, 2002
    ...for the crime of murder does not violate the Eighth Amendment's prohibition against cruel and unusual punishment); In re Kemmler, 136 U.S. 436, 449, 10 S.Ct. 930, 34 L.Ed. 519 (1890) (holding that punishment of death by electrocution does not violate the Due Process Clause of the Fourteenth......
  • Request a trial to view additional results
505 cases
  • Williams v. Treen, No. 80-3792
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 31, 1982
    ...and unusual punishment. See, Gregg v. Georgia, 428 U.S. 153, 169-173, 96 S.Ct. 2909, 2923-2925, 49 L.Ed.2d 859 (1976); In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 933, 34 L.Ed. 519 (1890); Wilkerson v. Utah, 99 U.S. 130, 136, 25 L.Ed. 345 (1879); see also, Granucci, "Nor Cruel and Unusu......
  • Dawson v. Kendrick, Civ. A. No. 78-1076.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • August 10, 1981
    ...needs will not be met. In the worst cases, such a failure may actually produce physical "torture or a lingering death," In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 supra, the evils of most immediate concern to the drafters of the Amendment. In less serious cases, denial of medic......
  • Baze v. Rees, No. 07–5439.
    • United States
    • United States Supreme Court
    • April 16, 2008
    ...an electrocution statute it was upholding “was passed in the effort to devise a more humane method of reaching the result.” In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 34 L.Ed. 519. P. 1530. (c) Although conceding that an execution under Kentucky's procedures would be humane and constit......
  • U.S. v. Quinones, Docket No. 02-1403(L).
    • United States
    • U.S. Court of Appeals — Second Circuit
    • December 10, 2002
    ...for the crime of murder does not violate the Eighth Amendment's prohibition against cruel and unusual punishment); In re Kemmler, 136 U.S. 436, 449, 10 S.Ct. 930, 34 L.Ed. 519 (1890) (holding that punishment of death by electrocution does not violate the Due Process Clause of the Fourteenth......
  • Request a trial to view additional results
5 books & journal articles
  • The Progression of “Evolving Standards of Decency” in U.S. Supreme Court Decisions
    • United States
    • Criminal Justice Review Nbr. 39-3, September 2014
    • September 1, 2014
    ...v. Alabama, 513 U.S. 504 (1995).Harmelin v. Michigan, 501 U.S. 957 (1991).Hudson v. McMillan, 503 U.S. 1 (1992).In re Kemmler, 136 U.S. 436 (1890).Ingraham v. Wright, 430 U.S. 651 (1977).Jacobi, T. (2006). The subtle unraveling of federalism: The illogic of using state legislation as eviden......
  • Capital Punishment and the Mentally Retarded Offender
    • United States
    • Prison Journal, The Nbr. 84-3, September 2004
    • September 1, 2004
    ...(2001). Beyond reason: The death penalty and offenders with mentalretardation. RetrievedOctober 15, 2001, from www.hrw.orgIn re Kemmler, 136 U.S. 436 (1890).Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947).McCarver v. North Carolina, 532 U.S. 941 (2001a).McCarver v. North Carolina......
  • How Would You Like to Die? Glossip v. Gross Deals Blow to Abolitionists
    • United States
    • Prison Journal, The Nbr. 98-1, January 2018
    • January 1, 2018
    ...Public Interest Law Journal, 6, 153-178. Retrieved from http://www.bu.edu/law/central/jd/organizations/journals/pilj/In re Kemmler, 136 U.S. 436 (1890).Kennedy v. Louisiana, 554 U.S. 407 (2008).Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947).Malik, S. C., & Holdsworth, D. P. (201......
  • The Execution of Wallace Wilkerson
    • United States
    • Criminal Justice Review Nbr. 42-4, December 2017
    • December 1, 2017
    ...Review,74,995–1029.Hughes, J. D. (2009). The tri-chemical cocktail: Serene brutality. Albany Law Review,72, 527–564.In re Kemmler (1890). 136 U.S. 436.Kerr, A. J. (2015). Facing the firing squad. Georgetown Law Journal Online,104, 74–86.King, R. D., & Wheelock, D. (2007). Group threat and s......
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