Wallace Wilkerson (c. 1834 – May 16, 1879)
was an American stockman who was sentenced to death by the Territory
of Utah for the murder of William Baxter. Wilkerson professed his
innocence, but chose to die by firing squad over hanging or
decapitation. The execution was botched; Wilkerson took up to 27
minutes to die because the firing squad missed his heart.
His case, Wilkerson v. Utah, was heard by
the Supreme Court of the United States and continues to be cited in
present day case law involving cruel and unusual punishment.
Wallace Wilkerson was born in Quincy, Illinois, to
a Mormon family. At the age of eight, he moved with his parents to the
Territory of Utah. At the age of seventeen, Wilkerson was working as a
stockman and horse breaker. He enlisted several times in the military,
once serving as a drummer in San Francisco, California.
In 1877, Wilkerson lived at Payson in Utah
Territory and worked with his brothers at Homansville. He frequented a
saloon nearby at Eureka. The bartender, William Baxter, called
Wilkerson a "California Mormon", which was considered a slur, and once
used a six shooter to break up a conflict between Wilkerson and
another patron in the saloon.
Death of William Baxter
On June 11, 1877, Baxter stopped at a saloon owned
by James Hightower in the Tintic Mining District while on the way to
Homansville. He met Wilkerson and the two began to play a card game of
cribbage for money. An argument broke out between the men over
accusations of cheating. Baxter attempted to back out of the struggle,
but was fatally shot in the forehead and temple by Wilkerson, who then
fled. The next morning, the coroner examined the body of Baxter, who
was determined to have been unarmed at the time of the shooting.
Authorities quickly captured Wilkerson and kept him under guard in
Goshen to prevent him from being lynched.
Wilkerson was indicted for premeditated murder by a
grand jury. On September 29, 1877, he pleaded not guilty and was
placed in the Utah County jail. Wilkerson's trial at the First
District Court of Utah Territory commenced on November 22. He was
convicted by the jury two days later. On November 28, state district
judge P. H. Emerson sentenced Wilkerson to death and set an execution
date of December 14, 1877. Wilkerson chose to be executed by firing
squad instead of the other options of hanging or decapitation that
were legal in the territory at the time.
A stay of execution was issued after Wilkerson's
attorney filed an appeal. The Supreme Court of Utah Territory denied
the appeal in January 1878. On January 8, 1879, attorneys E. D. Hoge
and P. L. Williams submitted a writ of error that raised an argument
of cruel and unusual punishment on behalf of Wilkerson to the Supreme
Court of the United States during its October 1878 term. On March 17,
1879, Justice Nathan Clifford delivered the U.S. Supreme Court ruling
that upheld the verdict.
Cruel and unusual punishments are forbidden by the Constitution, but
the authorities referred to are quite sufficient to show that the
punishment of shooting as a mode of executing the death penalty for
the crime of murder in the first degree is not included in that
category, within the meaning of the eighth amendment.
—U.S. Supreme Court, Wilkerson v. Utah (March 1879)
On May 15, 1879, Wilkerson was transferred from
Salt Lake City to a jail in Provo. Wilkerson spent his last day
together with his wife until half an hour before the execution. He
declined visits by the clergy. Wilkerson was brought out of his cell
by Sheriff John Turner, a deputy, and U.S. Marshal Shaughnessy. He was
dressed in black with a white felt hat and a cigar which he kept
through the execution. Wilkerson gave a farewell speech thanking the
law enforcement officers and shook hands with some of the 25 people
present in the jail yard in Provo. About 200 spectators were estimated
to have gathered outside. Wilkerson stated that he bore no grudge
against anyone except a witness that he accused of committing perjury
at his trial. Some of the witnesses of the execution recalled that he
appeared to be drunk.
Wilkerson was seated on a chair at a corner of the
jail yard about 30 feet away from the shooters and declined to be
blindfolded. He insisted that restraints were unnecessary, stating: "I
give you my word... I intend to die like a man, looking my
executioners right in the eye." A white three-inch paper target was
pinned on Wilkerson's chest over his heart. Wilkerson yelled, "[A]im
for my heart, Marshal!"
At approximately noon on May 16, 1879, the marshal
signaled the men who were concealed in a shed to shoot. When Wilkerson
heard the end of the count, he stiffened up in the chair, unwittingly
moving the target. The bullets missed Wilkerson's heart, one of them
shattering his arm and the rest hitting his torso. He leapt off the
chair and screamed, "Oh, my God! My God! They've missed it!" Four
doctors rushed to Wilkerson, who was struggling and gasping on the
ground. Officials were concerned at one point that they would have to
shoot him again, but he was pronounced dead 27 minutes later, having
bled to death. According to some accounts, he appeared to have died in
about 15 minutes.
Wilkerson's body was carried to an office at the
county courthouse. After being washed and placed in a coffin covered
in black, the body was returned to Wilkerson's wife to be taken to
Payson for burial.
The Deseret News, published at the time by
Latter Day Saint movement leader Brigham Young, proclaimed that "divine
law has been executed and human law honored" because Wilkerson "atoned
for that deed as far as it is possible so to do by the pouring out of
his own blood." However, the Ogden Junction criticized the
event by printing: "...the French guillotine never fails."
In the April 2008 decision of Baze v. Rees,
U.S. Supreme Court Justice Clarence Thomas cited the case of
Wilkerson v. Utah in affirming that Kentucky's method of execution
by lethal injection did not constitute cruel and unusual punishment.
U.S. Supreme Court
WILKERSON v. UTAH, 99 U.S. 130 (1878)
99 U.S. 130
October Term, 1878
ERROR to the Supreme Court of the Territory of Utah.
The facts are stated in the opinion of the court.
Submitted by Mr. E. D. Hoge and Mr. P. L. Williams for the plaintiff
in error, and by The Solicitor-General for the defendant in error.
MR. JUSTICE CLIFFORD delivered the opinion of the
Duly organized Territories are invested with
legislative power, which extends to all rightful subjects of
legislation not inconsistent with the Constitution and laws of the
United States. Rev. Stats., sect. 1851.
Congress organized the Territory of Utah on the 9th
of September, 1850, and provided that the legislative power and
authority of the Territory shall be vested in the governor and
legislative assembly. 9 Stat. 454.
Sufficient appears to show that the prisoner named
in the record was legally charged with the wilful, malicious, and
premeditated murder of William Baxter, with malice aforethought, by
indictment of the grand jury in due form of law, as fully set forth in
the transcript; and that he, upon his arraignment, pleaded that he was
not guilty of the alleged offence. Pursuant to the order of the court,
a jury for the trial of the prisoner was duly impanelled and sworn;
and it appears that the jury, after a full and fair trial, found, by
their verdict, that the prisoner was guilty of murder in the first
Regular proceedings followed, and the record also
shows that [ Wilkerson v. Utah 99 U.S. 130 (1878)
the presiding justice in open court sentenced the
prisoner as follows: That 'you be taken from hence to some place in
this Territory, where you shall be safely kept until Friday, the
fourteenth day of December next; that between the hours of ten o'clock
in the forenoon and three o'clock in the afternoon of the last-named
day you be taken from your place of confinement to some place within
this district, and that you there be publicly shot until you are dead.'
Proceedings in the court of original jurisdiction
being ended, the prisoner sued out a writ of error and removed the
cause into the Supreme Court of the Territory, where the judgment of
the subordinate court was affirmed. Final judgment having been
rendered in the Supreme Court of the Territory, the prisoner sued out
the present writ of error, the act of Congress providing that such a
writ from this court to the Supreme Court of the Territory will lie in
criminal cases where the accused is sentenced to capital punishment or
is convicted of bigamy or polygamy. 18 Stat. 254.
Appended to the proceedings is the assignment of
error imputed to the court below, which is repeated in the same words
in the brief of his counsel filed since the case was removed into this
court. No exception was taken to the proceedings in either court prior
to the sentence, the assignment of error being that the court below
erred in affirming the judgment of the court of original jurisdiction
and in adjudging and sentencing the prisoner to be shot to death.
Murder, as defined by the Compiled Laws of the
Territory, is the unlawful killing of a human being with malice
aforethought, and the provision is that such malice may be express or
implied. Comp. Laws Utah, 1876, 585. Express malice is when there is
manifested a deliberate intention unlawfully to take away the life of
a fellow-creature, and it may be implied when there is no considerable
provocation, or when the circumstances attending the killing show an
abandoned or malignant heart.
Criminal homicide, when perpetrated by a person
lying in wait, or by any other kind of wilful, deliberate, malicious,
and premediated killing, or which is committed in the perpetration or
attempt to perpetrate any one of the offences therein enumerated,
[99 U.S. 130, 132] and evidencing a depraved mind,
regardless of human life, is murder in the first degree. Id. 586.
Provision is also made that every person guilty of
murder in the first degree shall suffer death, or, upon the
recommendation of the jury, may be imprisoned at hard labor in the
penitentiary for life, at the discretion of the court; and that every
person guilty of murder in the second degree shall be imprisoned at
hard labor in the penitentiary for not less than five nor more than
fifteen years. Comp. Laws Utah, 1876, 586.
Duly convicted of murder in the first degree as the
prisoner was by the verdict of the jury, it is conceded that the
existing law of the Territory provides that he 'shall suffer death;'
nor is it denied that the antecedent law of the Territory which was in
force from March 6, 1852, to March 4, 1876, provided that 'when any
person shall be convicted of any crime the punishment of which is
death, . . . he shall suffer death by being shot, hung, or beheaded,
as the court may direct,' or as the convicted person may choose. Sess.
Laws Utah, 1852, p. 61; Comp. Laws Utah, 1876, 564.
When the Revised Penal Code went into operation, it
is doubtless true that it repealed that provision, as sect. 400
provides that 'all acts and parts of acts' heretofore passed 'inconsistent
with the provisions of this act be and the same are hereby repealed.'
Comp. Laws Utah, 651.
Assume that sect. 124 of the prior law is repealed
by the Revised Penal Code, and it follows that the existing law of the
Territory provides that every person guilty of murder in the first
degree shall suffer death, without any other statutory regulation as
to the mode of executing the sentence than what is found in the
following enactment of the Revised Penal Code. Sect. 10 provides that
'the several sections of this code, which declare certain crimes to be
punishable as therein mentioned, devolve a duty upon the court
authorized to pass sentence to determine and impose the punishment
prescribed.' Comp. Laws Utah, 1876, 567.
Construed as that provision must be in connection
with the enactment that every person guilty of murder in the first
degree shall suffer death, and in view of the fact that the laws of
the Territory contain no other specifie regulation as to the
[99 U.S. 130, 133] mode of executing such a
sentence, the court here is of the opinion that the assignment of
error shows no legal ground for reversing the judgment of the court
below. Authority to pass such a sentence is certainly not possessed by
the circuit courts of the United States, as the act of Congress
provides that the manner of inflicting the punishment of death shall
be by hanging. Rev. Stat., sect. 5325.
Punishments of the kind are always directed by the
circuit courts to be inflicted in that manner, but organized
Territories are invested with legislative power which extends to all
rightful subjects of legislation not inconsistent with the
Constitution and laws of the United States. By virtue of that power
the legislative branch of the Territory may define offences and
prescribe the punishment of the offenders, subject to the prohibition
of the Constitution that cruel and unusual punishments shall not be
inflicted. Story, Const. (3d ed.), sect. 1903.
Good reasons exist for supposing that Congress
never intended that the provision referred to, that the punishment of
death shall be by hanging, should supersede the power of the
Territories to legislate upon the subject, as the congressional
provision is a part of the first crimes act ever passed by the
national legislature. 1 Stat. 114. Different statutory regulations
existed in the Territory for nearly a quarter of a century, and the
usages of the army to the present day are that sentences of the kind
may in certain cases be executed by shooting, and in others by hanging.
Offences of various kinds are defined in the rules
and articles of war where the offender, if duly convicted, may be
sentenced to the death penalty. In some of those cases the provision
is that the accused, if convicted, shall suffer death, and in others
the punishment to be awarded depends upon the finding of the court-martial;
but in none of those cases is the mode of putting to death prescribed
in the articles of war or the military regulations. Art. 96 provides
that no person shall be sentenced to suffer death except by the
concurrence of two-thirds of the members of a general court-martial,
and in the cases specified in the rules and articles enacted by
Congress. Rev. Stat., p. 238.
Repeated instances occur where the death penalty is
prescribed [99 U.S. 130, 134] in those articles;
but the invariable enactment is that the person guilty of the offence
shall suffer death, without any specification as to the mode in which
the sentence shall be executed, and the regulations of the army are as
silent in that respect as the rules and articles of war. Congress
having made no regulations in that regard, the custom of war, says a
learned writer upon the subject, has, in the absence of statutory law,
determined that capital punishment be inflicted by shooting or hanging;
and the same author adds to the effect that mutiny, meaning mutiny not
resulting in loss of life, desertion, or other military crime, if a
capital offence, is commonly punished by shooting; that a spy is
always hanged, and that mutiny, if accompanied by loss of life, is
punished in the same manner,-that is, by hanging. Benet, Courts-Martial
( 5th ed.), 163.
Military laws, says another learned author, do not
say how a criminal offending against such laws shall be put to death,
but leave it entirely to the custom of war; and his statement is that
shooting or hanging is the method determined by such custom. DeHart,
Courts-Martial, 196. Like the preceding author, he also proceeds to
state that a spy is generally hanged, and that mutiny unaccompanied
with loss of life is punished by the same means; and he also concurs
with Benet, that desertion, disobedience of orders, or other capital
crimes are usually punished by shooting, adding, that the mode in all
cases, that is, either shooting or hanging, may be declared in the
Corresponding rules prevail in other countries, of
which the following authorities will afford sufficient proof: Simmons,
Courts- Martial (5th ed.), sect. 645; Griffith, Military Law, 86.
Capital punishment, says the author first named,
may be either by shooting or hanging. For mutiny, desertion, or other
military crime it is commonly by shooting; for murder not combined
with mutiny, for treason, and piracy accompanied with wounding or
attempt to murder, by hanging, as the sentence in England must accord
with the law of the country in regard to the punishment of offenders.
Exactly the same views are expressed by the other writer, which need
not be reproduced.
Cruel and unusual punishments are forbidden by the
Constitution, but the authorities referred to are quite sufficient to
[99 U.S. 130, 135] show that the punishment of
shooting as a mode of executing the death penalty for the crime of
murder in the first degree is not included in that category, within
the meaning of the eighth amendment. Soldiers convicted of desertion
or other capital military offences are in the great majority of cases
sentenced to be shot, and the ceremony for such occasions is given in
great fulness by the writers upon the subject of courts-martial.
Simmons, sects. 759, 760; DeHart, pp. 247. 248.
Where the conviction is in the civil tribunals, the
rule of the common law was that the sentence or judgment must be
pronounced or rendered by the court in which the prisoner was tried or
finally condemned, and the rule was universal that it must be such as
is annexed to the crime by law. Of these, says Blackstone, some are
capital, which extend to the life of the offender, and consist
generally in being hanged by the neck till dead. 4 Bl. Com. 377.
Such is the general statement of that commentator,
but he admits that in very atrocious crimes other circumstances of
terror, pain, or disgrace were sometimes superadded. Cases mentioned
by the author are, where the prisoner was drawn or dragged to the
place of execution, in treason; or where he was embowelled alive,
beheaded, and quartered, in high treason. Mention is also made of
public dissection in murder, and burning alive in treason committed by
a female. History confirms the truth of these atrocities, but the
commentator states that the humanity of the nation by tacit consent
allowed the mitigation of such parts of those judgments as savored of
torture or cruelty, and he states that they were seldom strictly
carried into effect. Examples of such legislation in the early history
of the parent country are given by the annotator of the last edition
of Archbold's Treatise. Arch. Crim. Pr. and Pl. (8th ed.) 584.
Many instances, says Chitty, have arisen in which
the ignominious or more painful parts of the punishment of high
treason have been remitted, until the result appears to be that the
king, though he cannot vary the sentence so as to aggravate the
punishment, may mitigate or remit a part of its severity. 1 Chitt. Cr.
L. 787; 1 Hale, P. C. 370.
Difficulty would attend the effort to define with
exactness [99 U.S. 130, 136] the extent of the
constitutional provision which provides that cruel and unusual
punishments shall not be inflicted; but it is safe to affirm that
punishments of torture, such as those mentioned by the commentator
referred to, and all others in the same line of unnecessary cruelty,
are forbidden by that emendment to the Constitution. Cooley, Const.
Lim. (4th ed.) 408; Wharton, Cr. L. (7th ed.), sect. 3405.
Concede all that, and still it by no means follows
that the sentence of the court in this case falls within that category,
or that the Supreme Court of the Territory erred in affirming the
judgment of the court of original jurisdiction. Antecedent to the
enactment of the code which went into operation March 4, 1876, the
statute of the Territory passed March 6, 1852, provided that when any
person was convicted of any capital offence he shall suffer death by
being shot, hanged, or beheaded, as the court may direct, subject to
the qualification therein expressed, to the effect that the person
condemned might have his option as to the manner of his execution, the
meaning of which qualification, as construed, was that the option was
limited to the modes prescribed in the statute, and that if it was not
exercised, the direction must be given by the court passing the
Nothing of the kind is contained in the existing
code, and the legislature in dropping the provision as to the option
failed to enact any specific regulation as to the mode of executing
the death penalty. Instead of that, the explicit enactment is that
every person guilty of murder in the first degree shall suffer death,
or, upon the recommendation of the jury, may be imprisoned at hard
labor in the penitentiary for life, at the discretion of the court.
Beyond all question, the first clause of the
provision is applicable in this case, as the jury gave no such
recommendation as that recited in the second clause, the record
showing that their verdict was unconditional and absolute, from which
it follows that the sentence that the prisoner shall suffer death is
legally correct. Comp. Laws Utah, 1876, p. 586.
Had the statute prescribed the mode of executing
the sentence, it would have been the duty of the court to follow it,
unless the punishment to be inflicted was cruel and unusual,
[99 U.S. 130, 137] within the meaning of the
eighth amendment to the Constitution, which is not pretended by the
counsel of the prisoner. Statutory directions being given that the
prisoner when duly convicted shall suffer death, without any statutory
regulation specifically pointing out the mode of executing the command
of the law, it must be that the duty is devolved upon the court
authorized to pass the sentence to determine the mode of execution and
to impose the sentence prescribed. Id., p. 567.
Persons guilty of murder in the first degree 'shall
suffer death,' are the words of the territorial statute; and when that
provision is construed in connection with sect. 10 of the code
previously referred to, it is clear that it is made obligatory upon
the court to prescribe the mode of executing the sentence of death
which the code imposes where the conviction is for murder in the first
degree, subject, of course, to the ocnstitutional prohibition, that
cruel and unusual punishment shall not be inflicted.
Other modes besides hanging were sometimes resorted
to at common law, nor did the common law in terms require the court in
passing the sentence either to prescribe the mode of execution or to
fix the time or place for carrying it into effect, as is frequently if
not always done in the Federal circuit courts. At common law, neither
the mode of executing the prisoner nor the time or place of execution
was necessarily embodied in the sentence. Directions in regard to the
former were usually given by the judge in the calendar of capital
cases prepared by the clerk at the close of the term; as, for example,
in the case of murder, the direction was 'let him be hanged by the
neck,' which calendar was signed by the judge and clerk, and
constituted in many cases the only authority of the officer as to the
mode of execution. 4 Bl. Com. 404; Bishop, (Cr. Proc. (2d ed.), sects.
1146-1148; Bishop, Cr. L. (6th ed.), sect. 935.
Reference is made to the cases of Hartung v. The
People (22 N. Y. 95), The People v. Hartung (23 How. Pr. (N. Y.) 314),
Same v. Same (26 id. 154), and Same v. Same (28 id. 400), as
supporting the theory of the prisoner that the court possessed no
authority to prescribe the mode of execution; but the court here is
entirely of a different opinion, for the reasons already given.