Syllabus.

"and

in the proofs in the statement that the vessel ran ashore, became a wreck and total loss, and was duly abandoned by the owners to her insurers, as will appear by certified copy of the protest of her master and mariners, heretofore served upon you." Hence the admission of the proofs of loss involved the admission of the explanatory writing. Ins. Co. v. Newton, 22 Wall. 32.

Finally it is said the court erred in excluding the record in a suit instituted by the Dry Dock Company against the Spartan to enforce a lien for the repairs, because the record was admissible to show the amount due to the Dry Dock Company, and also to show that the steamer was sold to satisfy the decree in that suit, and thereby to establish a constructive acceptance of abandonment by the insurers; but we do not think that it was admissible on either ground. The insurers were not parties to that suit, and the cost of the repairs and the amount of the loss were properly shown by other and competent evidence, while the sale of the vessel had no tendency to prove the acceptance of the abandonment, but rather that the underwriters did not consider themselves bound in the premises. The result is that the judgment of the Circuit Court must be Affirmed.

IN RE KEMMLER, Petitioner.

ORIGINAL.

No. 13. Original. Argued May 20, 1890. - Decided May 23, 1890.

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.

Statement of the Case.

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 corpus.

"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.

66

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.

Opinion of the Court.

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

Mr. Roger M. Sherman for the petitioner.

Mr. Charles F. Tabor, Attorney General of the State of New York, opposing.

MR. CHIEF JUSTICE FULLER delivered the opinion of the court:

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 previous 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.

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 and is not detained by virtue of any judgment,

Opinion of the Court.

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 pretence 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 constitutions 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 State Prison made the following return:

"First. That I am the duly appointed and acting Warden and Agent of the Auburn State Prison, and on the said 11th day of June, 1889, and before the said writ of habeas corpus

Opinion of the Court.

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 State Prison 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 and 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, 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 herein before 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 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 judg ment of conviction herein before set forth, and the aforesaid