Storti v. Commonwealth, 178 Mass. 549

Storti v. Commonwealth

178 Mass. 549 | Mass. | 1901

Holmes, C. J.

These proceedings are respectively a writ of error and a petition for a writ of habeas corpus. Both are intended to raise the same issue, that the punishment, death by electricity, to which the said Storti has been sentenced, under St. 1898, c. 326, § 6, is “ cruel or unusual” within article 26 of the Massachusetts Declaration of Rights. Upon the writ of error, the plaintiff in error insisting that the assignment was of error in fact, evidence was heard, the plaintiff in error being brought into court by habeas corpus to be present at the hearing, and the presiding justice found that the assignment was not true. The independent petition for habeas corpus was reserved by agreement of parties for hearing by the full court at the same time with the writ of error.

In the view which we take of the case it is unnecessary to consider any question of procedure, either as between the two proceedings adopted or as to matters of detail arising under each. We therefore pass all such matters on one side. It also is unnecessary to consider whether the before-mentioned article *553of our Declaration of Rights is to be limited in its application to the action of magistrates so far as they are left to themselves and the common law, or whether it is to be taken to embody a large general principle equally binding upon all branches of the Government, or at least binding upon magistrates and courts of law even when the Legislature has undertaken to establish a punishment by its act. Finally it is unnecessary to go into any nice argument upon the words of the article, and to decide whether, inasmuch as those words are “ cruel or unusual,” not “ cruel and unusual,” a punishment which is unusual but is not cruel is forbidden by them.

Taking all the preliminaries most favorably for the prisoner, we are clearly of opinion that the Constitution is not contravened by the act, and we render our opinion at once that we may avoid delaying the course of the law and raising false hopes in his mind. The answer to the whole argument which has been presented is that there is but a single punishment, death. It is not contended that if this is true the statute is invalid, but it is said that it is not true, and that you cannot separate the means from the end in considering what the punishment is, any more when the means is a current of electricity than when it is a slow fire. We should have thought that the distinction was plain. In the latter case the means is adopted not solely for the purpose of accomplishing the end of death but for the purpose of causing other pain to the person concerned. The so called means is also an end of the same kind as the death itself, or in other words is intended to be a part of the punishment. But when, as here, the means adopted are chosen with just the contrary intent,. and are devised for the purpose of reaching the end proposed as swiftly and painlessly as possible, we are of opinion that they are not forbidden by the Constitution although they should be discoveries of recent science and never should have been heard of before. Rot only is the prohibition addressed to what in a proper sense may be called the punishment but, further, the word “unusual ” must be construed with the word “ cruel ” and cannot be taken so broadly as to prohibit every humane improvement not previously known in Massachusetts. People v. Durston, 119 N. Y. 569; S. C. In re Kemmler, 136 U. S. 436.

*554The suggestion that the punishment of death, in order not to be unusual, must be accomplished by molar rather than by molecular motion seems to us a fancy unwarranted by the Constitution.

No doubt a means might be adopted which, although adopted only as a means, practically would be part of the punishment and would have to be considered as such. But such a case is not presented by a means chosen precisely because it is instantaneous. There was a hint at an argument based on mental suffering, but the suffering is due not to its being more horrible to be struck by lightning than to be hanged with the chance of slowly strangling, but to the general fear of death. The suffering due to that fear the law does not seek to spare. It means that it shall be felt.

Some criticism was addressed to minor details of the law. The provision that after delivery to the warden of the State prison the prisoner shall be kept in a special cell and only certain persons allowed access to him without an order of the court, does not prevent, and by its true construction is not intended to prevent, the presence of the prisoner in court in any matter which properly still may be brought up in court, and which by the course of law or treaty may require his presence, (see Commonwealth v. Cody, 165 Mass. 133, 138,) as was exemplified in this case.

Leaving it to the warden to select the day of the week appointed by the court for the execution was not intended to aggravate the prisoner’s distress, by enhancing his suspense. The purpose is humane, and the possible uncertainty for a brief period as to the exact time is not a part of the punishment. See further Commonwealth v. Costley, 118 Mass. 1, 35.

Judgment to stand ; writ of habeas corpus denied.