#### THE STATE *v.*IRA WEST GARDINER.

Murder — trial—charge of Court — malice—debt—sentence—respite—execution.

If an indictment charge the name of the person slain as Maria Gardiner, alias Maria Buel, and the proof shows her real name to have been Maria Frances Buel, though generally known by the names in the indictment, it is sufficient.

A description of a person in legal proceedings, by the name acquired by reputation is sufficiently certain.

A person of insane mind is not the object of punishment — the reason of a man makes him accountable for his actions — the deprivation of it acquits him of crime.

The same degree of insanity which excuses a man from his contracts, will exonerate him from accountability for crime. •

The design or purpose to kill may be deduced from the circumstances, the manner of inflicting the wounds, the instrument used, and its tendency to destroy life; if palpably calculated to take life, the party is supposed to intend so.

The declarations of a prisoner are to be cautiously received and scrupulously scrutinized, lest the language of the witness be substituted for that of the accused.

Malice is a general evil design, and is not confined to illwill against the person injured.

The law presumes all killing malicious, and the circumstances of excuse must come from the defendant.

A design to kill — formed coolly before the wound, is deliberate and premeditated.

On an indictment for homicide, the jury should express in their verdict, whether they find the prisoner guilty of murder in the first or second degree, or of manslaughter.

A reasonable doubt entertained by the jury of any matter essential to the crime of murder, should acquit.

Indictment for the murder of Maria Gardiner, alias Maria Buel. Plea, not guilty.

It appeared in evidence that Maria Frances Buel, commonly called Maria Buel or Maria Gardiner, was the daughter of the prisoner’s wife before her marriage with him. At the time of her death, she was an interesting young woman of about sixteen years old. She had lived with her mother and the prisoner. Something unpleasant had taken place between the prisoner and the deceased, which induced her to leave the house and seek shelter with the neighbors. What this difficulty was, the evidence did not disclose, but the sym-' pathy of the neighborhood were excited in Maria’s favor, which manifested itself in a disposition to afford her shelter and protection from Gardiner. A day or two before her death she had left home and sought shelter with the neighbors.

She was killed on the 8th of August, 1832. In June, Maria was sick, and one of the neighbors called in to see her — the prisoner asked him if she had gone to meeting the night before, and on being told that she had been with a Mr. Roberts, he said he would not provide any medicine for her, because she had gone to meeting with Roberts, as that was the cause of her sickness. Two or three days *393before her death Maria had secretly left the house and sought shelter with a neighbor by the name of Mills. Mills, at the request of Mrs. Gardiner, went to the prisoner on the 7th of August to talk with him about the difficulties in the family and to restore peace; told him he had come by request to talk with him. Conversed with him for some time, and told him Maria had arrived at that age when, if persuasion would'not keep her, he had better let her go. He assented to what he said, and then learned she was at Mills’s house. He wished to have her come back and without Mills, as he desired to talk with her alone. Mills went home and talked with Maria and returned and informed the prisoner she declined coming. Mills with his wife went down-again at the request of Mrs. Gardiner. When they came, Mrs.G. said, they have come to talk with you. Gardiner replied, ‘I do not want to talk; if Maria comes home, things will go well; if not, they will go wrong.’ Shortly after Mills returned home, and went to his barn, Maria came running out agitated, and said, Gardiner was coming. Mills told her to stay there. Gardiner soon came, and Mills ordered him to stop at the door. He asked why, and was told, that if he intended to kill her as he threatened, he should not do it there; he replied he did not wish to hurt her, but merely to converse with her. He was permitted to enter the barn and conversed with her about coming home. Soon after he left, went home and sent for Mills to come over, which he did, but there was not much said. Another neighbor called and told him Maria was at Mr. Mills’s barefooted, and without a handkerchief to put on her neck, and asked for her shoes and handkerchief, and he would carry them over. He refused, saying she should have nothing unless she came home to live. Several times the day before she was seen running from home disordered.

During the day and night of the 7th of August, and the morning of the 8th, Gardiner was about through the neighborhood inquiring for Maria. He seemed, to use the language of the witnesses, to have something serious resting on his mind, and made frequent threats of vengeance. To one he said,41 will be revenged of her if I have to follow her to hell — you outwitted me last night, but I will outgeneral you yet.’ To another he said at the house where she was,41 will see her if I have to wait this seven years. I sent word by my wife that you had outwitted me last night, but I will outmatch you yet, there is no mistake about it. I must * see her and will have my revenge if it is not this eight years.’ He then asked if there was any men about the house, and on being told there was none but a boy, he said,4 Maria has got to go home and live contented or I will *394be the death of her — I will have my revenge. You may think you can get her so far away that I cannot find her; but that will be of no use for I can find her — I will follow her to the end of the earth.’ He asked permission to go in to have Maria called, and said,41 may as well see her first as last, for see her I will, one way or another. She has got to go home with me, or I will be the death of her.’ Towards evening on the 7th of August, Maria went home; and two young men, neighbors, followed soon after, at her request and that of her mother. Maria asked them in. They entered into conversation with him about the difficulties, and endeavored to satisfy him that he had better let her go, as she was anxious to go. She made some movement to go — he ordered her back, telling her she should not go. He then turned to the gentlemen and said, he supposed he knew what they came for, and they might as well go home. The deceased said I hope they have come to help me; if not,I shall always feel hard towards them. Gardiner said, ‘I suppose they have come to help you away, but it is of no use, for the first one that puts his hand on me, is a dead man as quick as he does it.’ One of the men remarked,4 you would not kill me.’ He replied,4 try it and you will see: I don’t want you to interfere with my family concerns.’ Maria then tried to get out of the window; he ordered her back and made her sit down, saying,4 you cannot go from here, and if you do, you will go a corpse.’ One of the men went out and got a hoe. She shortly after got out of the house and went away with the young men. Several times during the 6th or 7th of August, Maria was seen running from Gardiner’s house, as if in fright and distress towards the neighbors.

Bidwell, one of the neighbors, called at Gardiner’s on the 7th of August, conversed with him about the difficulty with Maria, tried to persuade him that she was of that age that he had better let her go unless she would stay willingly, and proposed to give a bond to indemnify him against future charge on her account, if he would consent that she should live away from home — he refused. The next morning Gardiner called at Bidwell’s for Maria, and not finding her, he pursued on to another neighbor’s, where she was, and where Bidwell again met him in a few minutes. He insisted on seeing Maria, and desired Bidwell to persuade her to come home. He was asked, if she went home he would let her have her clothes, treat her well, and let her go in peace? At last he replied that he would not injure her. He expressed regret at the difficulty between them, and said the reports about him were not true. After a few moments, he wished Maria to go home, and he had no objection to *395her going away if she would remain at home three or four days, as he did not wish to have it appear that she was driven away. Finally he consented that if she would go home that day, she might have her clothes and depart before sundown — he said he had threatened to be revenged upon her if it were not for seven or eight years-, but' he was in a passion and was sorry for it. Bidwell extorted from Gardiner a promise to treat Maria well, and then went with her to Gardiner’s house. He met them at the fence near the house, spoke pleasantly to her; they went into the house; and in a few minutes Bidwell and he went away together to work on the roads. They remained together till noon, though Gardiner did but little work; he sat most of the time upon a log as if in a study. Bidwell went home with Gardiner and dined there — Gardiner did not eat. After dinner, Mr. and Mrs. Gardiner went out to converse about the difficulty. They soon returned, and Mrs. Gardiner and Maria went out. Mrs. Gardiner returned, and Maria went to one of the neighbors. Gar-diner asked Mrs. Gardiner what result she and Maria had cometo; and requested Mrs. Gardiner to call Maria home, for he wanted to have one more conversation with her. Mrs. Gardiner asked him, if she came, he would let her have her clothes, and let her go in peace ? He replied it shall be done, but I cannot alter my feelings towards her. Mrs. Gardiner went for her daughter — Gardiner remained near the door, and Bidwell lying on the bed. Gardiner advanced towards the bed, when Bidwell moved himself, and he stopped a moment, and went out of the door. In a few moments Bidwell heard persons talking out of the door, and directly heard a loud piercing shriek — he ran to the door and found the prisoner with a large butcher knife in his hand. Maria was moving quick from him, and was then about eight feet distant. Bidwell sprang to catch the prisoner; he dropped the knife and submitted. Maria then looked back, fainted, and fell on the ground. Gardiner then said41 have done the work thoroughly, there can be no mistake about that, and I am now satisfied. I deserve to die, and shall have to, an'd am willing to; but I will never be hung.’ Mrs. Gardiner screamed 4 did I call her home to see her butchered? Lord Jesus, have mercy on her soul.’ She then asked him why he did it, and what he did it with? He replied,41 did it with that knife, which I kept in my pantaloons pocket.’ Mrs. Gardiner then exclaimed, 4 poor creature, you could not stay at home, if you would! ’ — then turning to her husband, she said,41 know what caused you to kill her, but should never have told you.’ Maria lived about ten minutes and was then dead. She had been twice stabbed; one entered the body on the *396left breast, and one at the pit of the stomach. In a few minutes Gardiner said to a woman near him, ‘ I have killed her and my life must go for hers.’ She asked 4 if he was willing it should go so.’ He replied, ‘it must, willing or not willing, for I was determined to kill her since yesterday morning.’ When one of the young men who was at the house the night before came up, he said, ‘ you ought to have kept her away a day or two until I got over it, knowing as you did that I was in a passion.’ A short time after he said, ‘ I told you you had outwitted me last night, but that I would match you yet — I have done it, and got my revenge. I have committed the crime and expect to be punished.’ On being asked why he carried the knife several days ? he said, ‘ it was to scare her, and make her think she had got to live at home, and that he had not a mind to kill her but a few minutes.’ When the other young man came up,' he said, ‘ I have now outgeneraled you as I told you I would — I did the deed, and did it effectually.’ He said to Bidwell, ‘ you have helped me out of a great many difficulties; can you help me out of this?’ In a few minutes he exclaimed, ‘Oh, that she could again stand on her feet and breathe as she used to. I would give ten thousand •worlds if I had them, if she could.’ At the examination before the magistrate, he was asked if he wanted counsel ? He replied, ‘ I want no counsel — I have nothing for them to say — I have committed the deed — she was innocent and has done nothing to cause me to do the deed.’ On his way to prison, he told Bidwell that when he came up to him on the bed, he intended to lay away the knife which he then had in his pocket, where he had kept it for some time before, as something whispered to him that he had better not kill her at that time.

One witness testified that he was passing Gardiner’s house, and saw Mr. and Mrs. Gardiner near, and Maria at the bars, going in. Mrs. Gardiner went first, Gardiner next, and Maria last. Mr. and Mrs. Gardiner turned the corner of the house, when Gardiner turned, run back to Maria, caught her shoulder with his left hand, and with the right, made two thrusts at her as if stabbing her. She gave a shriek, ran a few steps, fell on the ground and died in a few minutes. On the morning after Maria’s death, an axe and a pitchfork, with the tines straightened, were found in the corner of the fence near the road. Gardiner said he carried them there the day before; and that he would have killed Maria that night if he had known where she was. On the Saturday night before the murder, Gardiner went out without his coat and was gone all night.

*397The defence set up was, that the prisoner was of unsound mind. It appeared in evidence, that in 1825, Gardiner left home with a load of wheat, and returned home at night with a cut on his head, which bled freely; refused to have a physician, and his wife and brother had difficulty in taking care of him during the night, as they thought he appeared a little out of his mind at times. He sometimes complained of headache. In 1827, his brother came to see him; he had been very siek with the jaundice, but was then recovering. He then lived in the house with a blind man, and the brother thought he showed some singularities in introducing him, &c. One day, having some difficulty with his family, he left the house and sought shelter in some bushes near by. The brother went to him, and found him moody. He said he had no children of his own, and that his wife had two illegitimate children before he married her, and he had just found it out; one of them was Maria, then one of the family. He said he would go off to Michigan; the brother dissuaded him: he then said he would go to sea; but finally went back into the house and staid, although he would not sleep with his wife for several nights. She was afraid of him, and requested the brother to stay, which he did for two or three nights, at her request.. In 1832, he was' in a wagon with his wife, Maria, and a Mr. Wilson, returning from camp meeting; he drove off very fast, his wife spoke to him about it, but he paid no attention to her. Wilson then spoke to him, but he gave an indirect reply, looked more *cross*than usual, did not act like a crazy person, but like one who was thinking deeply of something. Wilson afterwards met him when he was sociable, and at .another time when he refused to answer questions, and appeared more like a silly man than a wise one. On the morning of the 8th of August, as he passed along the road, if was remarked that he appeared as if something rested heavy on his mind; his head was frequently turned from one side to the other, as if looking for something. On being asked what he was looking for, he said he had lost his horse, and went on. Several physicians examined Gardiner’s head, and found a depression, and also a protuberance on the back of it; they could not say what produced it; it may have been a malformation. Gardiner said it was done by his being thrown from a wagon, and that his friends said his mind was affected by it, and he was sometimes deranged; no scar was perceived. If a mal- - formation, it would not affect the brain; if occasioned by external violence, might occasion a depression of the brain, and cause debility or derangement. Depression of the brain might exhibit itself in various ways, and for several years after, in creating stupidity, and *398every kind of insanity, affecting some traits of character more than others. His pulse was felt, and perfectly natural. His family physician, who had known him from his youth, had no suspicion of his being insane, and heard of none until after Maria’s death. In the winter of 1832-3, Gardiner was walking the road with one Lewis, when all at once he staggered out one side of the road, partly into the ditch, but immediately recovered, and said a sudden pain had seized him in the head, the like of which he had never had before; when he got home he told his wife of it. He was rather a singular man; mostly cheerful, but if any thing troubled him, he exhibited great depression of spirits. A number of the neighbors, and those with whom the prisoner had worked, and was intimate, and who had lived about his house, concurred in stating, they had never seen any evidence or appearance of insanity in Gardiner, or heard of his being insane, until sometime after the death of Maria. He was temperate, and of general good character. Several neighbors testified to his occasional depression of spirits, but attributed these turns to difficulties in the family, and to his being troubled with debts. Bidwell supposed the same thing, and had several times relieved him from his debts. He told Gardiner, that Maria had said, he had had criminal intercourse with her in a manner that would send him to the penitentiary, if true; he denied it.

*D. Tod*and Stone, for the state; and

*Giddings*and *Loomis,*for the prisoner,

argued to the jury.

Wright, J.

charged the jury as follows: Gentlemen of the jury, You have in charge Ira West Gardiner, accused by the state with having murdered Maria Gardiner, otherwise called Maria Buel, by stabbing her with a knife, on the 8th of August, 1832. This accusation you have, on your oaths, undertaken well and truly to try, and to find a verdict according to your evidence. The patient attention you have given to the investigation and arguments of counsel, satisfy us that you are rightly impressed with your duty, and need no further caution from us, on that head. You have only to look to the accusation, and the evidence given you in court; with the rumors and excitement out of doors, alluded to by counsel, you have nothing to do.

1. You will first inquire upon the evidence, whether Maria Gar-diner, alias Maria Buel, is dead? If that fact is not proven, you need examine no further, but should instantly acquit. If you are satisfied of her death, it will be your duty to inquire farther. It is ui’ged, as to this part of the case, that the proof essentially varies *399from the indictment, in this, that in the indictment, the deceased is described as Maria Gardiner, alias Maria Buel; whereas, the proof is, that she was called Maria Gardiner, and that her real name was Maria Frances Buel. If the proof satisfies you that the deceased was generally known by the name of *Maria*Gardiner, or *Maria*Buel, the description in the indictment is sufficient. The object being to identify with certainty the person slain, any description which attains to that end, satisfies the law. If one has acquired a particular name, by reputation, it is sufficient to describe him by that name, in legal proceedings.

2. Your next inquiry will be, did the prisoner kill the deceased by stabbing her? The evidence must satisfy you that she was stabbed in the body by the prisoner, and that the stabbing caused her death. If this is proven to your satisfaction, you will then inquire—

3. Was the prisoner1 of sound mind when he perpetrated the act? A person without the light of reason, is not the subject of punishment. The established principle is, ‘ that it is the reason of man that makes him accountable for his actions; and that the deprivation of reason acquits him of crime.’ The prisoner claims to have proven to you, that when this act was done, he was not of sane mind. He claims, that his head was hurt by a fall, some years ago, from which a derangement of the brain ensued, and occasional alienation of mind, up to this time, and that he was under the influence of this alienation of mind when the deed complained of was committed. Examine all the circumstances carefully, and if you think him then insane, acquit him. The distinction drawn by lord Erskine in Hadfield’s case, and relied upon by counsel, which requires a greater degree of insanity to excuse from accountability for ci’ime, than to exonerate from the obligation of civil contracts, does not obtain in this state, and is not here recognized as law.

If you find Maria Gardiner dead, that her death resulted from stabs inflicted upon her body by the prisoner, with a sharp instrument, and that he was of sane mind when he inflicted the wounds, then you will inquire—

4. If the act was done purposely, of *deliberate*and *premeditated malice?*The proof must satisfy you that the prisoner, when he struck the blows, *designed*or *intended*to kill, and that he did the deed with *deliberate*and *premeditated malice.*The *design or purpose to*hill, may be deduced from the attending circumstances: the manner of inflicting the wounds; the kind of instrument with which they were inflicted, and its natural tendency to destroy life. It may *400be deduced also from the declarations of the prisoner, made at the time, or before, or after the deed was done; but where reliance is placed on declarations, a jury should receive them with great caution, and scrutinize with care the circumstances under which they were uttered. Declarations made while a prisoner is agitated or depressed, are to be regarded but Slightly. They are often made without thought or intention; are heard imperfectly, inaccurately remembered, and carelessly detailed. There is danger that the witness may substitute words of his own for those of the prisoner, and by the employment of his own language, in whole or in part, convey to the mind of the hearer, ideas the prisoner never thought of. If, however, the act itself was one palpably calculated to destroy life, the law and the common sense of mankind concur in holding that the perpetrator intended to produce that end.

If the act was purposely done, it will be for you further to inquire, whether it was done with deliberate and premeditated malice? Malice, in its legal sense, is not confined to a particular animosity against the individual killed. .If the prisoner, in the act complained of, was influenced by a general evil design, a wicked and corrupt motive, under circumstances that show his heart desperately wicked, the act is adjudged to be with malice prepense, or with deliberate and premeditated malice. In general, every taking away of the life of another, is, in law, esteemed malicious; and.it lies upon the person destroying life, to show the circumstances relied on, to negative the malicious purpose. You should look to the whole evidence, and find the presence or absence of malice, as the truth shall appear.

If the act was done maliciously, was it perpetrated *deliberately*with *premeditation ?*If the prisoner *coolly*formed the design to kill, for *any time*before he executed it, the act was deliberate and premeditated. But if, *at the*time, he was led to form the design to kill by great provocation, heated blood, and excited passion, which continued from then until the act was done, it would not be held deliberate and premeditated. Yet, if the design was formed under provocation, and in hot blood, and time afterwards elapsed for passion to subside, and reason to resume her empire, the provocation and hot blood would be no excuse or palliation. We are asked to charge you, that if the design to kill was abandoned before the act was done, then the killing was not with *malice prepense.*

I do not know that I can make this more plain. A determination formed to do harm, which is abandoned, cannot, of course, attach itself to any act not done under its influence; but if such design were formed and given up, and again formed and carried into exe*401•cution, the original design is a circumstance only, and perhaps but a slight one, for the consideration of the jury, that the mind had de¿ liberated upon the subject. If then, the prisoner inflicted the wounds upon the deceased with an intention to kill, formed before the act was done, without great provocation, or the influence of heated blood, the law holds them inflicted of deliberate and premeditated malice, and if death ensue from them, the perpetrator is guilty of murder in the first degree.

The law of homicide is *defined*by the statute law of Ohio, and the guilt or innocence of the prisoner is to be determined by that definition, not that which obtains in England or in any other country* I have explained the requisites for a conviction of murder in the first degree.

[Here the judge read the statute defining murder in the first and second degree, and manslaughter.]

The difference between murder in the first and second degree, as expressed in our law, is found in this: to constitute murder in the first degree, the killing must be of deliberate and premeditated malice, while murder in the second degree is the killing *purposely*•and maliciously, but *without deliberate*and *premeditated*malice»

Manslaughter is defined to be, the *unlawful hilling, without malice,*either upon a sudden quarrel, or unintentionally, while the slayer is in the commission of some unlawful act.

All these offences are embraced in the indictment against the prisoner, and if the evidence shall establish his guilt of either one of them, it is your duty to find him guilty, and to express in your verdict which of the offences he is guilty of.

You will look to your evidence, and from that alone carefully elicit the truth. You will hold the prisoner innocent of every particular of the charge against him, until his guilt be made manifest in the testimony, and, if the acts proven be without assignable motives, in proportion as they depart from probability, in the same proportion the presumption of his innocence increases; because, men are not readily presumed to do unusual, extraordinary, or cruel acts, without motive.

It is better, much better, that the *guilty*should go unpunished, than that the *innocent*should be punished. You will, therefore, require proof to satisfy your minds beyond a reasonable doubt of guilt, before you convict. And if, upon the whole facts and circumstances you entertain a reasonable doubt of any matter necessary to constitute the crime charged against the prisoner, it is your *402duty, as I doubt not it will be your wish, to give him the benefit of those doubts, and pronounce him not guilty.

If you find the prisoner guilty, you will say in your verdict whether he is guilty of murder in the first or second degree, or of manslaughter. If you find him not guilty, you will say so, and nd more.

The jury retired at half-past six o’clock, P. M. At fifteen minutes before nine, they returned with a *verdict*— Guilty *of murder in the first degree.*

A motion was then made for a new trial, because the verdict is against evidence, which was overruled.

A motion in arrest of judgment was then made, argued, considered and overruled. The reporter has preserved no minutes of either motion.

The prisoner being set at the bar, and asked the usual question, if he had any thing further to say, why the sentence of the law should not be pronounced, replied in the negative.

Judge Wright then addressed the prisoner as follows: Ira West Gardiner — -You have been accused by the grand jury of your county, on their oath, with having purposely, of deliberate and premeditated malice, murdered Maria Gardiner, otherwise called Maria Buel, by stabbing her in the body with a knife.

Upon this accusation you have been put upon trial before a jury of your fellow-citizens, almost selected by yourself. This jury have listened with great patience and unyielding attention to every thing offered in evidence, as well for as against you, and to whatever has been urged in your behalf by the able counsel who have conducted your defence. They have, on their oaths, found you guilty, as you stand indicted.

The attention of the court has been called to the indictment, to ascertain if the charge against you is legally set forth. We have examined the authorities adduced, and considered the arguments urged against the validity of the indictment, and are satisfied the allegation it contains, legally describes the offence of which you are found guilty; an offence which our law denominates murder in the first degree, and punishes with death.

With the verdict of the jury we are satisfied. In our opinion, it accords with the evidence given to them, and with truth.

The facts proven, present a case of uncommon enormity. The object of your cruelty was a young woman, the daughter of your wife,, who had been reared in your family, and looked up to you as *403to a father, for support and protection. For some reason, not very satisfactorily shown in the proof, she, for a short time before her death, evinced a strong desire to leave your roof, under circumstances which induced her friends to believe she was in fear of you. You pursued her, avowing a determination to be revenged, if she did not return to your house, and continue to reside there. Finally, just before her death, you caused her mother to go to a neighbor’s, whither she had fled, to persuade her to return, and with a butcher knife, met her on the way, at noon-day, and plunged it twice into her body, barbarously murdering her, and when your object was accomplished, you exulted in the deed, and rejoiced that you had obtained your revenge. The act was wholly unprovoked, and unattended by any palliating circumstances. It was an act of wanton and clearly marked depravity.

I have made this statement of the case, with no view of harrowing up your feelings, upon an occasion like this, but to convince you there is no ground to expect pardon from the executive of the state, or from any other earthly tribunal.

It is necessary that you should suffer an ignominious death, that others, *warned by your*example, *may be afraid to commit crime.*Be persuaded, then, to employ the few moments remaining to you on earth, in making your peace with God. Let your hope rest on our Father in heaven, whose arm is mighty to save. Beseech him that he will enable you to make such use of your afflictions and punishment, that your soul may be saved in the life to come. Hasten to render justice to any from whom you may have withheld it in your dealings. Forgive your enemies, and be in charity with all men.

Repent of your sins; prostrate yourself at the feet of Jesus Christ, and earnestly beseech him of his great goodness to intercede with the Father for you. Call, with a single and contrite heart, upon that Jesus, who, of his infinite love, accepted the conversion of a sinner upon the cross, that he may open the eye of his mercy upon you, and quicken you with his grace and Holy Spirit, that you may be converted and cleansed from the deep stains of your sins; be enabled to bear up with patience and fortitude, in this your time of trial; and, at the hour of death, be prepared to depart from this world in hope and in peace.

You will be allowed the visits of your friends and counsel, to aid and advise you in the settlement of your worldly affairs, and of such of the clergy as you may desire, for your spiritual aid and comfort.

*404It now only remains for me to pronounce the judgment the law has provided for your crime. , It is—

That you be taken from hence to the common jail of the county? and that you be safely kept. That on Friday, the 4th day of October? in the year of our Lord 1833, you be taken to the- place of execution, and between the hours of nine o’clock in the morning and four o’clock in the afternoon of that day, that you be hung by the neck till you are dead. May God-have mercy on you!

Note. — After the sentence, a petition was circulated, signed and forwarded to the governor* • praying a respite of the execution until the meeting of the legislature, to afford opportunity for commuting the punishment. To the gentlemen forwarding this petition, the governor wrote the following letter, and sent a warrant, respiting the sentence till the first of November.

*Copy of Governor Lucas’s*Letter.

Executive Office, Ohio, )

, Columbus,, 26th Sept. 1833.5

Bear Sir,

I, on yesterday, received a letter from E. T. Gardiner, who stated himself to- be the brother of *Ira West*Gardiner, who has been convicted at the late term of the Supreme Court of Ohio, within and for the county of Trumbull, of murder in the first degree, and sentenced to be executed on the fourth day of October next; containing sundry documents requesting a postponement of the execution of the sentence of the court, until the next legislature, &c. These documents I have severally considered.

*First)*a newspaper, containing the sentence of the court against said Gardiner, in which it appears the court were of opinion that the act was wholly unprovoked, and unattended by any palliating circumstances, and that it was an act of wanton and clearly marked depravity ; and at the same time, reminded the prisoner that he had no ground to expect a pardon from the executive of the state, or any other earthly tribunal.

*Second)*a statement made by Francis T. Allen and Asahel Jones, physicians. Boctor Allen states, that since the trial of Gardiner, he had made inquiries respecting,his habits, and the habits of his family, &c. and gave it as his opinion that he possessed an *hereditary*predisposition to insanity; that he (Allen) was a regular physician and surgeon, &c. Boctor Jones states, that he has been for ten years in practice, as a physician and surgeon, and that he was convinced by information obtained since the trial of Gardiner, that one of the most frequent causes of insanity, viz: hereditary predisposition, does exist in the family of Gardiner. Neither of these gentlemen stated it (even) as their opinion, that Gardiner was under the influence of insanity, when he committed the crime.

*Third)*a statement of Joshua R. Giddings and Benjamin F. Wade, in which they state, that they were the acting counsel for the prisoner; that they considered the defence to rest— 1st, on the insanity of the prisoner; 2d, on the total absence of all motive or object to prompt ^o commit the murder. In the defence they appear to have failed. The jury being the rightful judges of-both the law and the fact, founded their verdict upon the testimony, and inferred the motive from the act. *

*Fourth)*a petition praying for a postponement of the execution of the sentence, until the next legislature shall have an opportunity of commuting the punishment pf said Gardiner to that of imprisonment for life, within the penitentiary, &c. which petition is signed by

Benjamin Allen., George Swift, Abram Griswold,

F. T. Allen, Richard Hays, Asahel Jones,

Titus Brockway, Henry Manning, Ed. Rockwell,

Eben Newton, Richard Iddings, R. P. Spalding^

Alex. McConnell, Silvanus Seely, John Crowell.

ifDjih'raim Brown,

*405These documents are so defective in their character, that 1 cannot feel myself justifiable in acting definitely on the subject; and I regret that the applicants should have forwarded documents on so important a subject, without a more critical examination of the constitution and laws that bear upon the case. If the executive was to postpone the execution of the sentence of the court until the next legislature shall have an opportunity of commuting the punishment as stated in the petition, it would amount toa perpetual postponement; for, the power of commuting the punishment of convicts, cannot be exercised by the legislature, until there is an alteration in the constitution of the state.

By the fifth section of the second article of the constitution, the governor is given general powers to grant reprieves and pardons, after conviction, (except in cases of impeachment); and by the provisions of the c act to provide for the safekeeping of persons that may be reprieved by the governor,5 passed January 27,1818, it is provided, that whenever the governor may deem it expedient and proper to reprieve any person under sentence of death, upon any condition whatsoever, the condition upon which such reprieve is granted, shall be specified in the warrant, and the person accepting such conditional reprieve, shall subscribe such acceptance upon the warrant, &c.; 29th Ohio Laws, page 344.

Notwithstanding the defects in the documents presented, I have, in consideration of the respectable names attached to the petition, (and with a view that the subject may be properly understood, and the sentiments and wishes of the people of Trumbull made known) thought proper to respite the execution of said Gardiner, until the first day of November next; and herewith enclose a warrant to that effect, which will require his consent, as described in the act aforesaid. If, at the expiration of that time, I can be satisfied that it is the wish of the citizens of Trumbull county generally, that his sentence should be commuted to that of imprisonment in the penitentiary for life, their wishes can then be complied with; if not, the sentence of the court will be then executed.

With sincere respect,

I am your obedient servant,

ROBT. LUCAS.

R. Iddings, Esq.

*Copy of the Warrant from the*Governor.

The State *of*Ohio, ss.

To all to whom it may concern: Be it known, that, whe^as, Ira West Gardiner, late of the count}' of Trumbull, in the state aforesaid, was convicted of the crime of murder in the first degree, at the August term of the Supreme Court, in said county, in the year of our Lord one thousand eight hundred and thirty-three, and was sentenced by said court, to suffer death, on the fourth day of October, A. I). 1833: And, whereas, the said Ira West Gardiner has had such intercession in his behalf, setting forth sundry good causes, for and on account of which, by virtue of the power vested in me by the constitution of the state of Ohio, and the act to provide for the safe-keeping of persons that may be reprieved by the governor, passed the 27th day of January, A. D. 1818,1 do hereby respite and postpone the execution of the said Ira West Gardiner, until the first day of November, 1833, on which day, between the hours of nine o’clock in the morning and four o’clock in the afternoon, the sentence of the court will be executed, and that he subscribe and acknowledge his consent to this reprieve, in pursuance of the above-recited act.

And it is hereby enjoined on the clerk and sheriff of the county of Trumbull, and all other officers and persons concerned, to conduct and govern themselves in the case aforesaid, in pursuance of the constitution and laws in such case made and provided.

Given under my hand and the great seal of the state of Ohio, at Columbus, this [l. s.] twenty-sixth day of September, in the year of our Lord eighteen hundred and thirty-three, and in the fifty-seventh year of the Independence of the United States of America.

By the Governor:

JVf. U. Kirby, Secretary of State.

ROBERT LUCAS.

*406On the back of which is endorsed:

The State of Ohio, Trumbull County, ss.

Warren, September 30, 1833.

X hereby agree and consent to the conditions of the within reprieve. Witness my hand and seal on the day and year above written.

IRA W. GARDINER.

WM. KNIGHT,

LEWIS REEVES.

The State of Ohio, Trumbull County, ss.

Personally appeared Lewis Reeves and William L. Knight, and made oath that they subscribed their names to the above certificate, and that they subscribed the same in the presence of the said Ira W. Gardiner, and that he submitted his name in their presence, and acknowledged his consent to the within reprieve.

Before me, GEORGE PARSONS, Clerk S. C.

Warren, September 30,1833.

Gardiner was executed on the first day of November.