Rutland weekly herald. [volume] (Rutland, Vt.) 1859-1877, 1873-03-20

which the record was reviewed.
The public interest which has been
and is still felt in this case, the extraor-
binary efforts which have been made to
procure communion of the sentence,
the publicity given to these efforts, and
the long period of time-now nearly two
wears = which has elapsed since the
crime was committed, make it proper
for me, before communicating to you
my final decision, to state the circum-
stances and the considerations on which
it is founded.
Foster and Putnam, his victim, met
in railroad car in the city of New
York. The latter had two ladies in his
charge, and, in consequence OF certain
annoyances by the former, demonstrated
with him on his conduct. 1t does not
appear that Putnam offered him any
provocation. Foster, who had been on
the front platform, entered the car and
sat down by Putnam, asking him several
times how far he was going; and when
the latter declined to answer and turned
away, obviously desiring to avoid con-
troversy, Foster said, ''Well, am going
as far as you go, and before you leave
this car will give you hell.
He then returned othe front platform
and asked the driver if he had car
hook, saying she would learn him (mean-
ing Putnam his business when he got
off the car; he would learn him to keep
his place" When the car stopped, Fos-
ter seized the car-hook, telling the driver,
who tried to stop him, to ''go to hell,
walked the whole length of the car on
the outside, attacked Putnam, who had
lust got out, and struck him two blows
on the head, one of which was fatal.
They were together after the first con-
yersation between them, while the car
was passing from the vicinity of Twen-
ty-ninth street to Forty-sixth street, not
far from three-fourths of mile, en-
bracing too long a period of time to
ascribe the criminal act to the sudden
impulse of passion or to exclude the pre-
sumption of premeditated design. The
fatal blow was given with an iron rod,
which was proved by the result to be a
deadly weapon. 1t is more than two
feet in length, having at one end double
coil of iron, from an inch and quarter
to an inch and half in circumference,
and is capable, in the hands of man of
ordinary strength, without any eXtraor-
binary effort, of fracturing the skull at
every blow. Foster had been conduc-
tor on one of these :treet cars; he must
have known the capacity for injury of
the weapon he deliberately chose, and
the jury might rightly presume that he
intended to do what he took the most
effectual means within his reach to &C
complish.
The murder was committed on the
Goth of April, 1871 the trial began on
the 22d of May ensuing the verdict
was rendered on the 25th, the sentence
passed on the Goth, and the 18th of July
was fixed for his execution. Early in
July, application was made for a COM
mutation of the sentence, and on the
9th a writ of error was filed and stay
of proceedings granted. On the 21st of
February, 1879, the judgment was af-
firmed at the General Term in the city
of New York, and the 22d of March was
fixed for the execution of the sentence.
The application for a Communication was
renewed, and was denied by my prede-
cessor on the 4th of March. On the
nth of that month writ of error TO the
Court of Appeals, with stay of pro-
ceedings, was granted, and ON the 21st
of January, 1878, the judgment was af-
firmed by the last named tribunal.
Thus it appears that all the remedies
provided by law for contesting the rul-
ings of the judge before whom the trial
took place, have been exhausted, and
that his action has been affirmed by the
two judicial tribunals having cognizance
of the caSe-the latter the court of last
resort.
The question presented to me is,
whether / shall interpose tthe executive
authority of the State and commute the
penalty of death, which the law awards
to murder, to imprisonment for life.
In support of the application, it is
urged that the verdict is accompanied
with a recommendation to mercy, and
that it is the duty of the Executive to
consider the one as part of the other.
This is no doubt so far true, that it
should commend the case to his most
careful and deliberate consideration. 1t
is an appeal which he should recognize
by reviewing all the circumstances, not
only with a willingness, but with a
desire to find in them a justification for
the exercise of his elemency. There is
no responsibility under the law on the
part of juries in making such recon-
mendations. On the other hand, the
responsibility of the Executive in acting
upon them is very delicate, whether
they be considered in reference to the
opinions of the jurors who make them,
or to considerations of public policy,
which, as a conseryator of the good
order of society, he is bound to regard
in applications to mitigate penalties an
neXed by the statute to crimes. Ny
! !. .,,A,,
ence of such considerations, or from the
belief that the criminals were justly
condemned to death, refused in three in
stances to commute their sentences, al
though recommendations to mercy ac-
companied the verdicts.
The application is supported on an
other ground, which is more embarras-
sing, and which has been to me a source
of great anxiety in coming to a right de-
cision. A large majority of the Jurors,
part of them by affidavit and others by
written statements, declare that some Of
their number did not believe Foster in.
tended to kill Putnam; that they
thought Imprisonment for life as great a
punishment as he deserved, and that
they would not have agreed to render
the verdict of murder in the first degree,
involving the penalty OF death, IT they
had not been assured by one of their as
sociates who professed 10 have knowl-
edge of the law, that such verdict ac-
Companied with a recommendation to
mercy, would insure a Communication of
the sentence. With two exceptions
these statements are all recent and the
two exceptions bear date more than ten
months after the murder was committed.
Two applications, as already stated,
were made to my predecessor for a
Communication of sentence-one as late as
March, 1872 and there is no evidence
that any such statement was presented
to him, nor is there any reference to one
in his letter denying the latter applica
ton.
1t is settled principle in this State
that ex parte affidavits or statements by
jurors impeaching the verdicts they have
rendered under the responsibility Of
their oaths, will not be received by the
courts in support of applications for
new trials. Indeed, | believe it may be
stated as a rule far more widely accept
ed that the cOurts will not suffer q iiIrv