Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1875-06-03

tees, gave hearing yesterday, in this city on the
petition of Louis II. F. Wagner for writ of error
to reverse some of the proceedings at his trial.
The specifications of errors we have alreaCy
published.
The case was opened at eleven o'clock, by WaI.
ner's counsel, Hon. Rufus 2. Taplcy, in written
argument
The first point made by Judge Tapley was in
regard 10 the judgment and conviction imposed
ny the sentence in the 1t is for the court to
a ,!s tne manner, time and place of execu-
non OF the prisoner. This has not been carried
out in the case IN question. lie would inquire
what is the penalty of murder; In certain cases
where persons arc found guilty of murder in the
first degree, the penalty is death; the court pro-
nounces the law, and the sheriff executes 1t. This
is commonlaw. The execution was carried out ur-
der the common law, and not in obedience to the
provisions OF statutes alone Until lS4l, the form
and place of execution had not been definitely fix
ed by statute, but was derterm ined by common
law. Tue statutes of 1871 provided that the hang
ing be done within the walls or enclosure of the
state Prison; this was change of the sentence
On execution at county Jail would have been
plainly Illegal in all cases, it must take place at
the State Prison. What had been done under the
law before prohibited The hanging
must be done at particular and specific place.
This was material change, and sentence that
did not embrace it would be subject to erro'.
There were various other changes made. to which
Mr.. Tspley referred. In 1921, the Legislature of
Maine provided by statute that no person should
be executed until the whole case is certified to the
supreme executive authority, and the warrant is
issued, etc. Thus the execution might follow i'm
mediately, or be delayed by the clerk or the cx-
ecutivc. No definite time was secured This re-
NAMED until 1887, when it was provided that no
person shall be executed until one year from the
sentence, nor until the record is certified by the
Clerk of Courts. But the execution must
be i'll particular place in particular manner, and
at particular time, and the introduction Of
any other matter would be imposing different
sentence from that the law requires. The officer
who executes it is not left to his own interpretation
OF law or his own speculations, but must obey the
court, and be governed by its direction. He does
not execute as he will may but according to II
judgment Of the judicial tribunal, and the place
OF execution becomes part of the Judgment
no where else can the prisoner be legally execu-
ed than at tho place fixed upon by the court and Il
court must specify the place. the court says at
Thomaston, the sheriff cannot go to Bangor OF
Augusta TO execute the sentence. The statute
now stands substantially where it did in 1921. In
the case of Gordon the sentence pronounced re-
cogn yes the materiality of the place, as well as
the mode of execution; so in the case of Lowell,
and others recently sentenced. But in the
of Wagner the sentence does no. direct the hang
ing to be done within the walls or enclosed yard
of the State Prison, situated in Thomaston in the
County of Knox in the State of Maine; neither n
terms substance.
We publish here the sentence OF the court IN
Wagners
And now upon the eighth day OF the term, be
ing the twenty-fourth day OF September, in tie
year of our Lord eighteen hundred and seventy
three, all and snglar, the premises being seen,
GeoigeC {. Ieaton, Esq. the Attorney for SAID
State for said county of York, moves the Count
for sentence upon Louis II. T. Wagner, the PRS
oner at the Bar, which the law pronounces. 1t is
therefore considered by the Court that the said
Louis ii. F. Wagner be hanged by the neck until
he is dead; and that he be confined in the State
Prison, situate in Thomaston, in the county OF
Knox, until the punishment just ordered be in
fiioted upon him; and stand committed until he be
removed to said State Prison in execution of til
sentence.
Secondly, in regard to the time. The count
must always pronounce the time the law fixes for
carrying out the execution. The time fixed iy
the executive authority must be the time specific
in the law If the law fixed no time for the execu-
ton, the convict could not be legally hung. In
the case now before the bar, no day is fixed upon
for the execution Of the convict. Is it the duty #
the sheriff to look up the statutes and what tie
laws are upon the subject' He is not to execute
his idea or opinion, but the law Imprisonment
for one year is part Of the penalty and must pre-
ccde the execution; but the sentence of Wagner
does not direct the hanging to take place after the
expiration Of one year from the day of sentence.
Again, one of the assignments in this case spec
flies that the record does not show that the said
Wagner asked by the Clerk Of the Court, CT
other officer or person, if he had anything to sly
why Judgment should not be pronounced on hin
nor that he iDterrogated at all concerning tie
sentence about to be pronounced upon him. AT
thorities numerous upon this point. This
must be made to appear upon the records. Howev'r
formal it may seem, this being law OF the court,
it ought to be regarded.
Again, NO reference is made in the record or IN
the sentence of any warrant or direction concert
ing the hanging pronounced IN said sentence.
This is of the safeguards of the law. and is an
indispensable requirement. 1t cannot be omitted.
1t is one Of the incidents of the penalty when it IS
q condition only upon which life can be taken,
becomes important. The Sheriff, finding no au-
thority in the judgment, has to depend upon the
order of the executive: The issue to be deter,
mined upon the writ of error must be determined
by the record if it acts advantageously to Il
prisoner it is not his fault The question is, wheth-
or there be errors. 1t would be a reproach ups n
the law that person be executed upon proceed
ing of doubtful LEGALITY. The question Is, net
whether the prisoner shall suffer less more, but
whether there are errors in the proceedings.
The argument of Judge Tapey consumed two
hours, and during the time he cited numerous de-
cisions, and law cases bearing upon the matter at
issue.
George c. Yeaton, Esq, appeared for the State.
He explained that he was here because when the
matter was introduced short time since, the At
torney General was engaged IN another case, ara
could not attend to this 1t is something marvel
lous if u centurys practice in this AMI the mott err
country has been erroneous! We had heard a
good deal about legal murders, but If the post on
of the counsel on the other side is trde, these mad
would proceed to show the utter inability of a
process in equity to touch this matter. He made
citations from acknowledged reliable textbooks to
show that equity cannot interpose between q
criminal and the execution Of the law. 1t never
had occurred in history. There were four cases
only in English law where it had been attempted.
At this point an adjournment was had to after
noon. On resumiDg in the afternoon, MIR. 1eaton
said that the decisions of English courts had been
cited as bearing on the question of the Importance
OF Incorporating into the sentence the time and
place of execution. How did this originate 1t
was at time when a superstitious church sought
to have the control of the soul of the prisoner az
ter the body had been executed. The State had
interviewer the idea of the church, into its laws.
But the time and place were not necessary parts
of the sentence. This opinion had been held by
the courts in several cases that were cited.
The day is fixed, not because it is absolutely
ne cessary but because special enactments of the
legislature and is simply collateral to the sentence
itself. American decisions were cited to show
that the time of execution is not considered an cs
sental part of the Judgment. The counsel says
that the time and place are essential parts Of the
penalty. What part he would like to ask Is
there ANYTHING in them that carries weight, as far