New-York tribune., 1873-03-08
FOSTERS CASE.
HIS POSITION BEFORE THE LAW.


40 ~" r,, ,,.,,oi efforts made to secure a
OLE , - =, ros,ey,s death sentence 10 imprison
-, Cor life merit notice. Siup'e o'ahor aSSu'o"9
shoud be permitted neither 10 y.
,oD,ata It's punishment Lest ros'c'S O'a'"''"
sar have been precpitated by popular pre1uu''e 'ne
s,..,onate Judgment Of staid court Oh re'ie" was
oispaSsio""' -, rroneous rulings of the Court that
ih'on' ~ -, have been the instrument OF his convic-
wv 49, aso was submitted TO an appellate tribunal
Wv" = ,,o highest Court in our state pronounced the
.d,pes 10 DO without error, and accordingly aurmeo
srdct Of the jury. Thus the case stands; Foster
,,Ased guilty OF the murder OF Putnam. according to
tbe methods known TO the common law ana
anctioped by the State Constitution. From this judg'
nant Fosters friends appeal TO the Executive
emency and would influence its action by the power OF
the press This appeal is made TO rest primarily on
alleged error OF lsw-error of law in the judgment OF
the Court OF Appeals, phoSe decisions are Iov III ths
Supreme Court has inadvertently erred why not rther
under favor OF reprieve, demand rearguInent OF the
case before it. than appeal from the law OF the case as
pronounced by q competent tribunal. to the unoon-
dered impulsive verdict OF the public 10 the extra
judicial opinions of desultory lawyersf
We all cOnfde in the integrity ana Judgement VI MI
ryarts still his opinion. interesting and able as IL is
NAV be questioned in point of legal accuracy He argues
that the iudge who tried Foster erred IN consrans
the iury 10 q verdict either OF murder IN tne nrst
degree or of manslaughter in one Of its four degrees
or in other words that he excluded from their eonsid
GRAFTON under the and circumstances OF the case
the possiblty OF his guilt OF murder in the second
degree He truly defines this crime to be homicide
sperpetrated without any design TO efect oeath Dy
person engaged in the commission OF any felony; ana
then he argues lin that death had not ensued that
tho attack OF Foster without deadly intent on Putnam
with the car-hook was the felony in the commission OF
which Foster was engaged when he undesgnedly killed
Putnam II this is sound law then the instructions OF
the Judge jury, that the case did not warrant
verdict Of murder in the second degree were obviously
wrong. But it has been held by our courts
and 30 it is, that the felony in which
the prisoner Is engaged when he effects
without design the death of another. is not meant by
the statute to be that felony located by law among the
degrees of between simple assault and battery ana
murder; for. they, such felony being merged IN
the subsequent murder leaves nothing on Which the
satue can act The felony referred to by the statute
esy they means q crime OF different species from that
which through comparative degrees from SIN
Gle assault eliminates murder: an hlustra-
ton OF which they find In the instance
Of a person who when committing burglary Dy peat
ing in the door Of house with an ak, ignorany kss
another concealed behind IT, Here the felony in the
commission Of which the criminal is engaged
ip the burglary; and the ooncealment OF the
person whose death is effected by the burga-
rious blow. while it disarms the blow of desgn
90 kill. nevertheless impresses upon one crime the
character OF murder in the second degree because
the homicide was undesgnedly perpetrated while the
criminal was engaged COminNSIVh VI -
this is good law then the facts and circumstances In
Fosters case excluded his crime from murder IN the
aecond degree and the instructions of the judge TO the
j,ry were not in error at that point.
MIR Evarts further saws Of Fosters crime, that 1t
might have fallen in the form OF the assault with
dangerous weapon within manslaughter In "the third
degree but the qualifying moral element OF the heat
OF psssion was wanting" But 1t may be reasonably
Sought Mr.. Evartss statement OF the case shows
tion of the heat of passion" was not wanting,
for he says Poster IS brought into connection
with Putnam the victim OF his violence, for
the first time in a Broadway car Foster was
intoxicated and quarrel between them arose. Upon
Patnsms leaving the car, IN he course o. a I IeH mo
msnS Foster pursuing an angry resentment wnGh ne
drivers which he seized at the uonent or .ne
purpose" Now moment of time IL instantaneous
that the angry resentment" of the intoxicated"
Foster engendered by his quarrel with Putnam passed
nave been reasonably thought by the jury that some
" SHs oo & w hsn s o ranse6 OF could
then must follow that not only the facts ana crenn-
OF murder in the second degree, but that |
they would have allowed of his conviction |
the instructions of the Judge TO the jury it will be diff
cult g fix Legal upon heR Tna, sy hSs
of Putnam the social lnOnensve character Oh roster
The ESeentive interpretation should therefore be ex
tended il al ALL for other than such reasons DO other
DICT Of guilty was extorted by mistaken belief that
II would authorize only an 0 INr me me da BaI
convict him OF murder in the second degree, |
and that they might convict him OF some |
one of the degrees Of tmanslauRhter, IL Is dih- |
cult to decide that such mistaken belief |
should produce Communication Of the death sentence
Still the fact charged with painful doubts. 1t Is refer
able to very fOunain'and source OF usce-the jury
box. II qualified and impressed tho handspring OF |
human action-the human conscience. 1t may be dan
gerous disregard this factdaDRerous for the doubts
thence arising Of the ustworhiness OF courts and ues
of the just and mercul dispensation OF justice |
Rather than this the higher rule is, better that
hundred criminals should go free. An extended re-
nreve might allow of reargument Of the before
the Court of Appeals and perhaps ultimately of the
confinement OF Foster for life BY Judgment OF law IN eX-
patton OF his crime. CITIZEN
Ee,c York, March T. 1873.