The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1875-06-04
The Wagner Case.
Error-Arguments ofiJ Judge TsPiey and
G. C. YeatOn, Esq.

Thu rsday's despatch with regard to the hear
ing in the Wagner case was in many respects
erroneous, The hearing was had on the petit
ton of the writ of error, and not on the excep
lions. The petition for the writ of error con-
talned nine specifications, designed to present
the omission in the record of all alluslon to
town or place of execution, and the failure OF
the record to show that the prisoner was in
ouired of before sentence if he had anything
to say why Judgment should not be pronounced
on him.
Judge Tspley's argument Was confined to the
petitiop for a writ of error. He cOntended the
sentence was erroneous in not embracing GER
tain elements of the penalty for murder; that
the penalty now fixed by law for murder was
hanging BY the neck until dead, within the
walls or enclosed yard of the state prison,
such time as the Executive by his warrant
should fix, after the lapse of one year after the
sentence was pronounced. All these things he
commended were essential elements in the
pepalty and must be embraced in the sentence,
and he said that until the revision OF our
statutes in 1S41 the mode and place OF execu-
ton were governed entirely by common law;
that in 1871 the mode was provided by statute,
and was the same as common law in murder,
and the place was entirely changed; that at this
term public executions were abolished and the
place made Specific and limited, viz: within
the walls or enclosed yard of the state prison.
He contended that a sentence requiring tne
execution at any other place, as for instance at
Ban gor or Augusta, would be erroneous and re-
yersed on error because different penalty
from that provided by law, and this shew the
material character of the provision otherwise,
and enforced the proposition. He cited from
English cases relative to what was considered
material parts of judgment, and he also con-
tended that the sentence was defective IN
making no alluson to the timelot execution
He commended the lGw always fixed time for
the execution. Sometimes it was done by
specifyng the number of days after sentence
and sometimes the day was fixed by the court
and sometimes as now by the Executive; that
whenever and wherever fixed it was the day
the ld,o fixed; that if the lda0 fixed no tlpe the
convict could never be hung legally because he
would be hung at the time the law did not Tx
and provide. He said this principle had been
recognized in Massachusetts for peary one
hundred years by uniform practice, and was
recognized in number of instances 10 this state,
citing the case OF Lowell III Androscogln
| county. In these cases the sentences provided
that the execution should take place at sucn
| time as the executive by his warrant should
appoint. The case of Lowell and of Gordon
| and Others in this state also recognized Jne
necessity of specifying the place as provided by
| law. He also coutended that another element
| of the penalty was introduced by the statute OF
1897 yiZ:-an imprisonment Tor one year at
| least before the execution.
| This element was also recognized in the case
| of Lowell and others IN this state. This propo-
| sition was enforced by argument showing the
| material character of tho provision, and arguing
| that a sentence requiring execution In less than
| one wear would be erroneous because different
| from that imposed by law. Concerning the
| provision Of the common law requiring that the
| prisoner be enquired OF before sentence if he
| have ought to say why sentence should not be
| pronounced uponfhm, he cited all the ele-
| mentary writer's upon criminal law, English
| and American, as authority that this was IN
dsDensabIe and that it must appear on the
| record He also cited the decisions OF the
| American court in some SIX or seven different
| states and contended however formal 1t might
| seem. it bad become by law an indispensable
| requisite
| Concerning the exceptions he had only to say
| that if the proceedings in the court below were
| such as the government Contended, VIA Dill
| in equity, the court below erred in dismissing
| it, because judge at niSi prius had no such
| power On the other hand if it was asshe con-
| tended a petition under a different provision
| of law, they were entitled to ruling on the
questions presented. That the question here
| was not what the ruling below should be, but
| whether there should or not be any,
Mr. Yeaton argued in reply for the govern
| ment, He expected the exceptions would be
| argued and had prepared his brief expressly fol
those. He contended "a bill in equity was not
the proper remedy, citing numerous authori
] ties. Concerning the petition for the writ Of