The Rutland daily globe. [volume] (Rutland, Vt.) 1873-1877, 1877-05-05
Che 8utland SaiIg Glnbe
SATURDAY, MAY 8, 1877.
THE STATUS OF PHAIR's CASE.


The execution of Phair's sentence having
been respited until the first Friday of April,
1879, what will be done with him? By the
terms of his sentence-pronounce Februa.
~ 4, 1S75-he was TO be confined in the
state prison for the period of two years,
and until the sentence of death should be
executed; and that during the first twenty
months he should be confined at hard labor
in the prison, and that for the remainder of
the time, preceding the time of execution,
he should be placed in solitary confinement.
Granting the validity Of the second execu-
tive reprieve, Phair is now confined in
state prison under the sentence of death
pronounced February 4, 1875, and, if he 10
executed at all, it will be in pursuance of
that sentence. 1t would seem to follow,
assuming the validity of the whole pro-
ceedings, that having already been confined
at hard labor for the full term of twenty
months, that the remainder of his confine-
ment, "until the sentence of death shall be
" executed must be in solitary confine-
ment. This is the only natural and reas-
enable construction of his sentence, and it
would follow that there is no authority to
place him at hard labor, but it does not by
any means follow that he will not be placed
at hard labor but will be kept in solitary
confinement.
The case now goes to the legislature, and
can take three approximation, par
don, or new trial. 1t is not to be supposed
that the legislature will presume to pardon
him, although the power Of pardon is
lodged with that body and no where else F.;
neither 10 it to he expected that u ecrious
effort will be made to obtain COM
mutation of his sentence, for the effort
to obtain respite in the execution
of his sentence, has not been based upon
the idea of Communication. Indeed, the few
opponents of capital punishment aside,
the whole people of the state will undoubt-
edly concede that if Phair is guilty at all,
his crime is SO atroclous that the full pen
atty of the law ought to be exacted. The
penalty prescribed for murder in this state
is death, and the Communication of the SEN
tence to imprisonment is clemency, and,
surely, it Phair is guilty of the murder as
charged, there is nothing in his case call
ing for clemency.
There seems to be some misapprehen-
sion over the power Of the legislature to
grant new trials. Down to within fifty
years the legislature was in the frequent
practice of granting new trials in civil as
well as in criminal cases, but the practice
was repeatedly denounced by the council
of censors on the reports of such men as
Nathaniel Chapman, Elijah Paine, Daniel
Farrand, Nicholas Baylles, Charles Marsh,
Asa Adds, Daniel Kellogg, Bates Turner,
Samuel S. Phelps and others, as being an
undue interference with the powers of the
judiciary such laws were finally pro-
nounced unconstitutional by the Judges,
aud the practice abandoned. The legisla-
ture has no power to grant Phair a new
trial, and if any relief is afforded him it
will, undoubtedly, be in the form of some
legislation by which he can apply to the
supreme court of this county, in February,
1870, for new trial. 1t is, a. least, ques-
tionable whether the legislature has the
constitutional power to pass an act special
ly for Phair's case, but the whole object
will be reached by general law, also re-
troactiye, which shall allow a person con-
victed of capital offense to petition the
proper court for a new trial at any time.
Whatever shape the legislation may take,
the application for new trial will be
made at the term of the supreme court TO
be holden in Rutland, in February, 1879,
the alleged newly discovered evidence will
be examined, and the case disposed of on
the principle laid down in Phair's former
application for new trial, that "the court
Twill not grant new trial, unless upon
an examination of the evidence used up
" on the trial, together with the newly
" discovered evidence. they are convinced
"that if new trial was granted, and an
" opportunity afforded the party to use the
"newly discovered evidence, that it would
probably change the result"