New-York tribune., 1873-03-06


These tinces ali appeal with great force 10
your Exeeiency' with whom alone rests the power to
CONSIDER the,n ana you should SOC your duty 70 com
mute Fosters sentence % imprisonment for NE, your
action Will, IN my Judgment, De amply yindcaed by the
considerations 80 clearly and ably presented by MI.
Eyarts. am with greas respect, yours sincerely
HENRY Il. DAVIES
OPINION OF EX-COMMISSIONER LEONARD.
FROM TIE HON. WILLIAM II. LEONARD, LATE
COMMISSIONER OF THE COURT OF APPEALS.
The People Of the state Of ge,c- York William Foster
Ihave carefully examined the bill OF exceptions in the
OF William Foster indicted, tried and con
ycted at the Court of oyer and Termner in the City OF
New York, OF the murder OF Avery ID. Putnam, IN tine
hrst degree, and by the jury recommended % mercy
After carti9y Weighing ~ am eon'lnced Inss s, ne
evidence tending 10 establish want OF prenedtatl0 on
design % take the lie or Mr. Putnam OYefDalahces
AL that tends 10 a opposite conclusion.
PremedtdtlOn must exist 20 constitute murder IN tne
first degree in this case the want OF reconciliation
might reduce the character OF this crime 10 tht OF mur
der IN the second degree After the commission OF the
act Foster did not attempt any conceaiment He went
directly 20 the raroad depot near Dy wnere ~
for some time. Hearing the report OF the transaction
prepared ny Shumwdy, the Supernendenl, 20 De sgeu
by the conductor over there announced that he
the man. It appears TO nave been not then sup
posed by these persons nat the occurrence would nave
fatal result Foster then went home and was arrested
there two three hours later. THIS conduct was
wholly inconsistent with knowledge That ne had com
passed or effected the death OF Mr. Putnam II Foster
premeiIiated or designed the death of MI Putnam ne
could not nave been Ignorant that the bO" when ne a
struck upon his head mad effected IT. or that II 9d AZ
least rendered his death exceedingly proDaoie IueIe
that Foster entertained any beuei OF suspc9h eEen'
had taken endangered the life OF Mr. Putnam
According 10 the course Of human action IN cs VI pre-
meditated homicide the murderer cudeavOrs 10 commit
crime I'm manner; or II done m such man
that the who commits the homicide ~ known
or can De rcadly iun1lneu' nc ~, -. - - a.
Dy Nj sht cunceameut But the conduct or Foster is
without any act or word 70 indicate CONSEQUENCES mat
he mad taken or endangered ne the contrary, lie
made denial that ne had committed the act OF Whch
ing preparing report ~ be sent police station.
There Is nothing upon which To found a presumption
Foster tnen affecting an ignorance OF the result
which M gnt attend sucn blow he had an hour be-
fore, inflicted upon the head or Mr.. Putnam.
instance 0f such conduct cannot be cited where the
act was premetaed designed, and the offender was
aware that he could DC readily identified ana connected
cannot consider this evidence Of Fosters conducr,
inconsistent premedItated murder as overcome by
be conceded that premeditatol for moment prior
the act is sufficient to prove the malice OF intent re
uired IA sustain OF murder che first de-
HIse ~ - -, ~ non with Mr. putnam. the
declaration Of Foster that he would 20 s ar with the
the deceased was gOiugi Jhit Ne "Oud give nm
hel'-fOlOwed IN lew minutes Dy lls taxing yhe car
hook from the Of the passing round % the rear
the deceased wac leaving II, and n1lctng WIN
that dangerous instrument the blow whch fractured he
skull Mr. Putnam and resulted IN his DEATH roster
aiso sa 20 .ae @ lin ~ Ne PinaIa and before he m
hicted blow, that would learn nun lPutnalnD Ms
business. Nothing unnecessarily inconsistent Wlh lhe
absence pcmedIaOn or Intention 70 take hfe can be
deduced from TINS evidence.
The vulgar threat used by Foster is frequently
plOyed 10 signify hgurauve injury OF merely yerOal
knock Mr. Putnam down. he might have employed the
same yugr phrase. Had the same blow Win the same
instrument been stricken upon the mead OF person
having q strong physical organization 10 would not
probaby have resulted in dean 10 has even been SAID
that MI Putnam II IL had received the proper
surgical treatment, would not nave resulted fatally
But OmtIng this hypothesis rs 20 negligent surglcal
treatment threat instrument employed and the
blow do establish intention or premedltduOu 20
take lie against the subsequent conduct OF roster
The tOxcaOn O Foster may perhaps be referred 10 a5
tending explain of premedtaton or intention
70 take life, and the homicide ana his conduct
Immediately aferWard consistent with TINS conclusion
While ntOXioatOn does not excuse, lt mas never Deen
held 70 aggrlyae the degree Of crime His intOXcauOn
contributes probability that tine crime under
all the circumstances, committed without any intention
take ie, or legal phrase without prenedltatlOn
Many good points were neglected by the prisoners
counsel The Judge might properly have gwen the IN
asked by the counsel or Foster that tne
Jury might nd him guilty of murder IN the second de-
gree, indictment dd ne erdence, had IL Oeeh pre-
ented depending ON further qualification that they
should that evidence established that there was
a want oi premeditatiOn.
Ii Jury say whether the evidence proved
murder the second degree, and the Judge technl
cally refusing the request IA The form IN
which Is presented. The OMISSION however, 70 trst
put proposition in the suggested a damag
oversight when connected WIN the refusal OF the
Judge charge requested. IL left the jury 10 sup
pose, think they did, that they were not at liberty
ind murder in the second degree. Hence
tine jury found the Oense be murder In the first de-
gree, and coupled t with a recommendation 70 mercy,
founded the evidence IN the cause.
II will a very great misfortune in the cause OF JUS
tce should that ndation fail 20 reduce the
alLy % that OF murder IN the second degreenprsOn
for life. WM. III. LEONARD
Aer- York. Feb. IL, 1873