The Rutland daily globe. [volume] (Rutland, Vt.) 1873-1877, 1875-02-04

entries recorded in Bailey u Parmenters
book. This was the great turning point in
the case--tbe Identification of the watch;
this is vital point to determine, whether
this Is legal evidence or not. There Is no
case in England or in this country where
such evidence is admitted except where
such person is named or effected by the en-
try, while on the ground of principle this evil
dence must be rejected. This evidence was
deemed sufficient to hang him, and we are
powcrless to meet such evidence. There
is no more reason in admitting this evidence
than in admitting the declaration OF de-
ceased person. In this case there is not
the least connection between these entries
of Parmenier and the robbery and murder;
nothing OF the kind can be pretended. Nor
the evidence as entries or memoranda.
First they do not charge Parmenter to his
firm, but were mere memoranda for his
own convenience; second, they do not
come under the head of entries made in the
due course of business certainly not as to
this matters third, they are no! made in
due performance of duty.
The petition for a new trial should be
granted on this new evidence discovered.
This IS not obnoxious TO the rules as to
cumulative evidence for The respondent had
no evidence on any of the points disclosed
in the aliidavits.
The respondent was in jail, and but about
one week elapsed after the indictment, and
counsel were assigned to him, before the
trial came on and the counsel assigned
WERE in the meantime, engaged in the
business of the court which was in session,
and in the nature of things they could not
know of the existence of the evidence
which was afterwards disclosed to them.
The newly discovered evidence is MATERIAL
and ii it had been produced would have
raised reasonable doubt of the respon-
dents guilt therefore would have pro-
duccd different verdict One of the
series of circumstances that the state re-
lied upon was that the respondent had
given false statement of his whereabouts
on Monday and Monday night. This evil
dence shows that his statement was true.
1t also tends to show that another man
went to Mrs. Freezes house with
her about twelve o'clock on the night
of the murder, which hour was before
Phair had returned from Brandon, as the
night tram from the north did not arrive
until flor thnt TLarofnrn If tha iurv u oil
been satisfied that another man went to her
house with her, and was left there ut that
late hour by the hack in which they went,
and that Phair was out of town at that
time, and went to his hotel after his return,
and was there at his room after one clock,
and was seen there again at quarter be-
fore four o'clock, and left town ut half-past
four, two hours before the fire broke out
they must, necessarily, have had reason
able doubt of his guilt
In closing the duty assigned me | feel
that new hearing should be granted my
client the same as though he Lad not been
placed here under such unfortunate circum-
stances; of having such strong public
sentiment against him sufficient to override
everything, feel rs if we had got at last
to a tribunal that will give a fair decision
"a decision as if he was any other man
and give him the full benefit of the points
noted IN the bill of exceptions and in the
petition for new trial
ARGUMENT on STATES ATTORNEY EVENTS.
The first question raised by the excep-
lions relates to the qualification of some of
the jurors who tried the cause. By the
common law and the decision of the ST.
preme court in this state, person is quail
fed to try Il cause, if free from bias or
prejudice, if impartial, can try the cause
upon the law and evidence and return a
true verdict therein, and has not expressed
an opinion upon the guilt or innocence of
the respondent. With these qualifications,
any impression made or opinion formed,
and not expressed is not cause for chal
lcngc. The question has been settled be-
You'd a peradveniure and has been rule
ever since the state had an existence, as
early as Brayton's reports, and re-aflirmcd
in the 3D. Vermont, in the case of Board
man VS.. Wood. The case of Boardman VS.
Wood was II well-considered case re-af-
frmed in the State vs.. Clark and has ever
since been the rule acted upon by courts
and counsel. All the jurors objected to in
this case came clearly within the rule
adopted in Boardman VS.. Wood. The ju-
ror, Sheldon, had previously formed some
opinion from reading accounts of the
transaction in the newspapers, but
did not think he had ever ex-
pressed any opinion that If he knew
his own position, he thought he was not SO
prcjudiced but what he could try the case
upon the evidence given in court. Neither
the Jurors, Tarbell or Loveand. have ever
expressed any opinion, to their knowledge
or recollection, and neither of them had
any bias, one way or the other. This Is
true of all the accepted jurors. No one OF
them ia shown to have any bias or preju'
dice, though they had impressions, and
formed opinions to some extent from read
ing the newspapers, as all intelligent mer
must have upon the current events of thu
day yet this does not disqualify; some
thing more is needed the juror must have
expressed that opinion. None of the &C
cepted jurors are shown to have done so
Assuming that juror has expressed al
opinion and has forgotten it, (Which is no
shown and cannot be presumed), he has nj
pride of opinion TO maintain, which alon'
disqualfes him. The reason of the rul
leaves him precisely as it would IT h
had formed an opinion and not expressed
it. The expression of an opinion canno
: be presumed, but must be proved, If tn