In Gaslight Lawyers I include a discussion of the case of “Handsome Harry” Carlton. Richard Rovere, who wrote a book about the firm of Howe and Hummel, told of William F. (“Big Bill”) Howe’s argument on Harry’s behalf that the trial judge had no authority to sentence Harry to hang although Harry had been convicted of murder. Howe’s argument was that in June 1888 the legislature had passed a new law that did away with hanging in the counties of New York State. Instead executions would be conducted by the State of New York by means of electrocution. But the language of the statute, said Howe, also said that death by electrocution would not become legal until January 1, 1889, and then only for crimes committed after the date of the legislation. Rovere wrote that “[T]he startled judge agreed that … he had no power to sentence Carlton or any other first-degree murderer … and the effect on the community was comparable to that or Orson Welles’s terror [War of the Worlds] fifty years later.”
As I stated at pages 23-24 of Gaslight Lawyers, the judge was not startled; nor did he agree that he had no power to sentence Harry. He sentenced Harry to hang, and told Howe that he could take his argument to the appellate court. Here’s a bit more about Howe’s of “Handsome Harry” Carlton.
Howe had raised the argument in the trial court by way of a motion in arrest of judgment, which may not have been the proper motion. In any event, the argument was included in the appeal. I have the appellate record, which is available online. Howe did not brief the issue again, relying on what he had said in his motion at trial, which had been transcribed. The state addressed the argument in its appellate brief, arguing the procedural point, and also providing arguments for a different construction of the statute (which had a savings clause). The Court of Appeals of New York (the highest appellate court) issued its opinion which can be found at People v. Carlton, 115 N.Y. 618, 22 N.E. 259 (1889). The court carefully addressed most of Howe’s claims of error, but did not think that “the other exceptions taken in the case [one of which would have been the argument that that the appellant, Harry, could not be hanged], and [found] none which require[d] particular notice.” In other words, the justices did not think the issue was even worth mentioning in their opinion. Of course, the appeal delayed the hanging, but the case was sent back for resentencing, and Harry was hanged. For more on my discussion of “Big Bill” Howe’s defense of “Handsome” Harry Carlton read my book, Gaslight Lawyers.
I found no evidence of any murders committed by people who thought they could not be punished if Howe’s argument were accepted as the law. Perhaps one or more of the newspapers tried to scare everyone to death, but there does not seem to have been any panic. So much for the “War of the Worlds” effect.
Actually, there would be still more delay before the first electrocution. Neither Westinghouse (AC – alternating current) nor Edison (DC – direct current) wanted “his” electricity used. A committee was set up to decide which would be employed. In the meantime the counties continued to conduct executions by hanging. It was not until August 6th, 1890, when the world’s first electrical execution (of ax murderer William Kemmler) took place at Auburn (State) Penitentiary.