Daily Kennebec journal., 1875-03-17
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ROCkLAND.
Hearing ON the Wagner Case.

Hearing on the Wagner Case.
Rockland, March l6. The hearing on the peti,
tion for an injunction to restrain the execution OF
Wagner began in the Supreme Judicial court this
evening. large number were present Judge
Tapley appeared for Wagner, D. N. Mortland,
Esq, for Go rdon, and Geo. G. Yeaton, Co. Attor-
ney of York Co., for the State.
Gordon's case being first on the docket, Mr..
featon SAID it should be first proceeded with, but
Mr.. Mortand said Gordon would abide decision
reached in the Wagner case, as they were SINH
lar.
Judge Tapley then read the petition and pro-
ceeded with his argument, which was an able
presentation of the case and consumed 2 l-2
hours. Three warrants were put into the case
aud described, it being claimed that the first war
rant, though dated Oct. 2, 1873, was not issued
until Jan. 10 or 20, 1875. Judge Taplcy claimed
that by English statutes, which were the common
law of this country, the day of execution was re-
quircd to be stated in every sentence on conyic-
ton Of murder and was a material part of such
sentence. Various English cases were cited to
support this position. This requirement was by
order of George Second enacted in 1852. First
law of Name on the subject Of murder, in 1921
provided simply for the penalty of death. A later
act of the same year provided for certificate of
record to the sheriff, before execution, and was
nothing about mode, time or place of execution,
In 1887 the statute of George Second, as the COM
mon law Of the land was the only authority on
these points.
1t was further claimed that there had been no
repeal Of the common law requiring the day of
execution to be fixed in the sentence to this time,
only modification as to adding solitary confine-
ment and requiring the execution not to be within
year. Nothing to justify Withdrawing authority
to fix the day from the courts and commit it to ex-
ecutve. The fixing of the time for execution was
claimed to be Judicial act-not the execution Of
decree, but decree ITSELF Also claimed that if
it be contended that the legislature conferred au-
thorty on the executive, it was not competent for
the legislature 10 do So and the State constitution
was quoted from to strict division of the powers
of government. If the determining time of exc
cution be judicial act, the legislature cannot
fer it on the executive and if executive the legis-
'lature cannot confer it on the Judiciary. The leg
stature had declared it judicial act by the law
lust passed.
The action of the executive was also objected
to because the sentence of Wagner omitted the
name Of the place of execution. This was part
OF the penalty and something material point
was also made that though the Governor and
Council rev ewed the csse they neither commuted
pardoned nor issued the warrant; that the execu-
tive went out of Office and a new one succeeded
him, who issued this warrant, and it was no answer
to say he was the same individual. The establish
ment Of tribunal to review and decide murder
cases after the courts had convicted and passed
sentence, was an attempt to confer judicial power
on the executive branch of the government ard
unconstitutional.
The objections as to the mode Of proceeding
chosen in this case were answered and Judge Tap
ley closed at 10 o'clock
Mr.. Ieaton began his argument and spoke l-2
hour and concludes tomorrow. lie said that
after century of concurrent practice in Maine
and Mass, the proposition that we had illegally
executed SO many criminals was something start
ling lie made the point and supported it with
liberal citations, that the jurisdiction of an equity
court is purely civil and such courts are solely
ganized to protect property rights.
Mayor Bryant was inaugursted this evening and
delivered his address to the city council.