Kemmler v. Durston

Decision Date21 March 1890
Citation119 N.Y. 569,24 N.E. 6
PartiesPEOPLE ex rel. KEMMLER v. DURSTON.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from supreme court, general term, fifth department.

W. Bourke Cockran, for appellant.

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

O'BRIEN, J.

The respondent is the agent and warden of the state-prison of Auburn, and the relator, being in his custody, applied for a writ of habeas corp us to inquire into the cause of detention, which was made returnable by the officer granting it, before the county judge of Cayuga county. The relator, in his petition for the writ, stated that the cause or pretense of the imprisonment complained of was that after his indictment and trial for the crime of murder in the first degree, and his conviction thereof in the court of oyer and terminer, he was sentenced by that court to undergo a cruel and unusual punishment for that crime, contrary to the constitution of this state and of the United States, and was threatened with deprivation of life without due process of law by reason of such illegal sentence and judgment of the court. The writ was july served upon the respondent, who made return thereto that he detained the relator in his custody as agent and warden of the prison by virtue of the judgment of the court of oyer and terminer held in the county of Erie, whereby the relator was duly convicted of the crime of murder in the first degree, and also by virtue of a warrant duly delivered to him under the hand and seal of a justice of the supreme court presiding at the said court of oyer and terminer where the relator was convicted, which recited the indictment, trial, conviction, and sentence of the relator, and directed the respondent to carry the same into effect, in these words: ‘Now, therefore, you are hereby ordered, commanded, and required to execute 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 inclosure adjoining thereto, by then and there causing to pass through the body of him, the said William Kemmler, otherwise called John Hort, a current of electricity of sufficient intensity to cause death, and that the application of such current of electricity by continued until he, the said William Kemmler, otherwise called John Hort, be dead.’ This command and direction to the warden was in accordance with the sentence actually passed upon the relator after conviction, in these words: ‘The sentence of the court is that 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 inclosure adjoining thereto, the defendant suffer the punishment of death to be inflicted by the application of electricity, as provided by the Code of Criminal Procedure of the state of New York, and that in the mean time the defendant be removed to, and until the infliction of such punishment be kept in solitary confinement in, said Auburn stateprison.’ On the return-day of the writ the relator and the respondent appeared by counsel before the county judge, and by agreement of counsel the production of the relator, pursuant to the command of the writ, was waived. Counsel for the relator then offered to prove that infliction of the penalty named in the sentence, namely, death by the application of electricity, is a cruel and unusual punishment, within the meaning of the constitution, and cannot therefore be lawfully inflicted. The attorney general objected, on the ground that the court had no authority to take proof in regard to the constitutionality of the statute. This objecttion was overruled by the county judge, and the counsel for the respective parties agreed that a referee be appointed for the purpose of taking the testimony in pursuance of the offer. In this way a mass of testimony was given upon both sides, certified by the referee to the county judge, and embraced in the extended record before us. The result was that, after a hearing upon the report of the referee, the county judge dismissed the writ, and remanded the relator to the custody of the respondent.

When it appeared from the return of the respondent that he detained the relator in custody under and by virtue of the judgment of a court of competent jurisdiction, wherein the relator was convicted of murder, it was the duty of the county judge to dismiss the writ, and remand the relator to the custory of the agent and warden of the prison, unless it could be shown that the court of oyer and terminer was without jurisdiction to pass the sentence which it did. People v. Warden, 100 N. Y. 20, 2 N. E. Rep. 870; People v. Liscomb, 60 N. Y. 559. It is not denied that the court had such jurisdiction providing that the legislature had power under the constitution to enact chapter 489 of the Laws of 1888, entitled ‘An act to amend sections 491, 492, 503, 504, 505, 506, 507, 508, and 509 of the Code of Criminal Procedure, relative to the infliction of the death penalty, and to provide means for the infliction of such penalty.’ Prior to the passage of this statute, the punishment by death in every case was to be inflicted by hanging the convict by the neck until he was dead. This provision of law was changed by the amendments of the Code above referred to, and now the section (505) reads as follows: ‘The punishment of death must in every case be inflicted by causing to pass through the body of the 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.’

The only question involved in this appeal is whether this enactment is in conflict wich the provision of the state constitution, which forbids the infliction of cruel and unusual punishment. Const. art. 1, § 5. This provision was borrowed from the English statute passed in the first year of the reign of William and Mary, being chapter 2 of the statutes of that year, entitled ‘An act declaring the rights and liberties of the subject, and settling the succession of the crown,’ usually known as the bill of rights. It enacts, among other things, that ‘excessive bail ought not to be required, nor, excessive fines imposed, nor cruel and unusual punishment inflicted.’ When this statute was made part of the constitution of the United States the word ‘shall’ was substituted for the word ‘ought,’ and in this form it first appears in the constitution of this state adopted in 1846. It is not very clear whether the provision as it stands in our constitution was intended as an admonition to the legislature and the judiciary, or as a restraint upon legislation inflicting punishment for criminal offenses. When the statute referred to was enacted in England it was not intended as a check upon the power of parliament to prescribe such punishment for crime as it considered proper. Its enactment did not change any law then existing, nor did it mitigate the harshness of criminal punishments in that country. For more than half a century after it...

To continue reading

Request your trial
70 cases
  • Commonwealth v. McKenty
    • United States
    • Superior Court of Pennsylvania
    • December 9, 1912
    ...15 Am. & Eng. Ency. (2d ed.), 204; Church on Habeas Corpus (2d ed.), 383; Com. v. Huntley, 156 Mass. 236 (30 N.E. 1127); People v. Durston, 119 N.Y. 569 (24 N.E. 6); Ossie v. State, 147 Ala. 152 (41 So. A party is entitled to a habeas corpus not merely where the court is without jurisdictio......
  • Ex Parte Hollman.
    • United States
    • United States State Supreme Court of South Carolina
    • January 16, 1908
    ...3 Am. St. Rep. 901; Ex parte Smith, 135 Mo. 223, 36 S. W. 628, 33 L. R. A. 606, 58 Am. St. Rep. 578; People v. Durston, 119 N. Y. 569, 24 N. E. 6, 7 L. R. A. 715, 16 Am. St. Rep. 859. See, also, Ex parte Mato, 19 Tex. App. 112; Ex parte Burnett, 30 Ala. 461; Ex parte Rollins, 80 Va. 314; Br......
  • People v. Broadie
    • United States
    • New York Court of Appeals
    • June 18, 1975
    ...225--226, 351 N.Y.S.2d 663, 666, 306 N.E.2d 787, 789, cert. den. 416 U.S. 973, 94 S.Ct. 1999, 40 L.Ed.2d 562; People ex rel. Kemmler v. Durston, 119 N.Y. 569, 576, 24 N.E. 6, 8, affd. 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519; see, generally, Granucci, Nor Cruel and Unusual Punishments Infli......
  • State v. Houston, 20080625
    • United States
    • Supreme Court of Utah
    • March 13, 2015
    ...power of such kind of punishment as was deemed most effective in the punishment and suppression of crime"); People ex rel. Kemmler v. Durston, 24 N.E. 6, 8 (N.Y. 1890) ("We entertain no doubt in regard to the power of the legislature to change the manner of inflicting the penalty of death. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT