The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1873-03-18
GOVERNOR JOHN A. DIXS DECISION.
His Autograph Letter to
Rev. DR.. Tying.
He Will Not Annul the deliberate and
Well Considered Determinations
Of Juries and Courts"
THE GOVERNOR REVIEWS THE EVIDENCE.
Ar

representations contained in your letter my most
earnest attention. and have carefully examined
oil the testimony, the official papers and all the
statements which have been made to me in the
case of william Foster, who lies under sentence Of
death for the crime OF murder
In . recent case, not unlike his, I said was
willing to have 1t understood that circumstances Of
a very extraordinary nature would be needed to
induce me to interpOse for the purpose OF annu
ling the deliberate and well considered deternina-
tons OF juries and courts.
l find no such circumstances attending the criml-
nal act OF Foster his trial. the verdict the decis
ion OF the courts, by which the record was re-
viewed.
The public interest which has been and is still
felt in this case, the extraordinary efforts which
have been made to procure a communication Of the
sentence, the publicity given to these efforts, and
the long period OF time-now nearly two years
which has elapsed since the crime was committed
make 1t proper for me, before communicating to
you my final decision, to state the circumstances
and the considerations on which 1t is founded
Foster and Putnam, his VICTIM met in q railroad
car in the city OF New York. The latter had two
ladies In his CHARGE and, in consequence OF GER
tain annoyances by the former, demonstrated
with him on his conduct It does not ap-
pear that Putnam offered him any provo
cation. Foster, VINO mad been on the
by Putnam, asking him several times how far he
he was going; and when the latter declined to an
swer and turned away, obviously desiring to avoid
controversy, Foster said, "Well, am going as
far as you go, and before you leave this car will
He then returned to the front platform and asked
the driver If he had a car-hook saying "he would
learn him (meaning Putnam) his business when he
gets or the car; he would learn him to keep his
place." When the car stopped Foster seized the
carhook, telling the driver, tried to stop him.
to Ego to hell walked the whole length Of the car
on the outside attacked Putnam, who had just got
out, and struck him two blows on the head one of
which was fatal
They were together, after the first conversation
between them while the car was passing from the
vicinity of Twenty ninth street to FOrty-siXth
street, not far from threel0urths of mile embrace
act to the sudden Impulse Of passion or to exclude
the presumption OF premeditated design. The fatal
blow was given with an iron rod which was proved
by the result to be deadly weapon. II Is more
than two eet In length having at one end double
coil OF iron, from an inch and quarter to an inch
hands OF man OF ordinary strength, without any
extraordinary effort, Of fracturing the skull at
every blow. Foster had been conductor on one
OF these street cars; he must have known the CO.
pacity for injury OF the weapon he deliberately
chose, and the jury might rightly presume that lie
intended to do what he took the most enectual
means within his reach to accomplish.
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 14th Of July was axed
for his execution. Early In July application was
the 9th writ OF error was filed and stay Of pre-
| ceedngs granted. on the 2lst Of February, 1872,
the Judgment was affirmed at the General Term In
| the city or New York, and the 22d OF March was
| fixed Tor the execution Of the sentence. The APP
plcation for communication was renewed and was
denied by my predecessor on the 4th or March.
On the 18th OF that month writ OF error to the
Court OF Appeals with stay OF proceedings was
granted, and the 21st of January. 1873 the udg-
ment was afirned by the ast-named tribunal
Thus 1t appears that oil the remedies provided
by law for contestng the rulings OF the Judge be-
IN vvhO fhQ no
hausted, and that his action has been affirmed by
the two judicial tribunals having cognizance Oft
case-the latter the Court OF last resort.
The question presented to me is, whether shall
interpOse the executive authority OF the State and
commute the penalty OF death, which la ,, the law
In support OF the application 1t Is urged tn at the
verdict was accompanied with recommended ton
to mercy, and that 1t Is the duty OF the
Executive to consider the as q part OF
the other This Is, no doubt SO far true
that 1t should commend the case to his most care
full and deliberate consideration. IL ID an appeal
which he should recognize by reviewing all the cir
cumstances not emily with q Willingness. but with
erclse OF his cemency. There is no responsibility
under the law on the part Of juries In making such
sibty 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 conservator OF the good order OF
society he Is bound to regard In applications to
mitigate penalties annexed by the statute to
crimes. My predecessor, doubt under the in
nuence Of SUCH considerations, or from the belief
that the criminals were Justly condemned to death,
refused In three instances to commute their SEN
fences, although recommendations to mercy &C
companied the verdicts.
The application is supported on another ground,
which is more embarrassing, and which has been
to me source OF great anxiety in coming to
right decision. A large majority OF the jurors part
oil them by afIdavit and others by written State
ments declare that some of their number did not
believe Foster intended to Kill Putnam. that they
thought Imprisonment for life as great punish
me mt lie deserved, and that they would not have
agreed to render the verdict OF murder In the first
degree, involving the penalty OF death, II they had
protested to have knowledge OF the law, that
such a verdict, accompanied with q recommends.
ton to mercy, would insure q Communication OF
the sentence. With two exceptions these state
ments are all recent, and the two exceptions
bear date more than ten months after the murder
stated, were made to my predecessor for comInu-
taton Of the 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 application.
It is settled principle In this state that er
pdrte affidavits or statements by jurors impeach-
ing the verdicts they have rendered under the
responsibility Of their oaths, Will not be received
by the Courts in support OIL applications for new
trials. Indeed, believe IL may he stated as rule
far more widely accepted that the Courts will not
suffer jury ITO explain by afidavlt the grounds OF
their verdict to show that they intended some
thing different from what they lound." Whether
the rejection OF such afiidavts and statements
be founded upon the belief that, by reason OF
the protracted deliberations OF juries In many
cases, and the differences OF opinion to be recon
ced In coming to the requisite unanimity, they
could be easily procured; or whether they be re-
jected upon the ground that statements made
under no responsibility cannot be permitted to
overthrow adudications made under the highest,
II can hardly be doubted that they would tend, II
admitted, to unsettle the administration OF JUS
tice and render executions under capital convic-
tons nearly impossible. Some of the reasons
which govern Courts In refusing to receive such
statements In support OF applications for new
trials ought, in my Judgment, to govern the Execu-
tive In applications for the communication OF sem
fences. In the JUDGES charge to the
jury he said:-"Before you can convict
the prisoner OF murder In the first de-
gree you must be satisfied from the evidence, not
only that Foster killed Putnam but that he ud so
with premeditated design to effect his DEATH ]"
and he was thus convicted by the jury upon the
responsibility their oaths. Ought the same per-
sons to be permitted nearly two years afterwards
their