Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1879-02-14

place, and spent night in that room, saw
the dog with the collar and other things
which he says he saw, he would have given
the description he now gives. and would
have omitted all mention of the soldier s
monument that was there in 1874, but was
not there then. His description omitting
that goes to show that he was describing it
as 1t was before, and shows that be was
there years before. His deser p.ion of what
be did and where he was in Providence has
but little weight as bearing upon his being
in Boston and disposing of these things.
The testimony most relied On, and which
has done most to bring this case here. is
that OF Downing lie testiies that he came
from Providence to Boston on the I0:h of
June, and there rode in the seat with a man
who said he was from Rutland and who told
him his business. lie told this man his
business as a manufacturer and dealer in
novelties, and proposed to employ him to
sell goods on commission which was de-
c!ined. Neither learned the other name.
They separated at Boston, and nearly three
years afterwards bis attention was called
to the subject by Phair's statement pub
lished in the papers, and from that he
concludes that tho man he met on the car
was Phair. lie does not claim to have
ever seen Pnair or could identify him.
lt seems to Us that it is important
that he should be able to testify to some
thing that would be Of use to Phair before
We should grant new trial On his testi-
mony. lie mas not sworn that Phair was
the man he saw on the cars and We see no
reason 10 suppose he ever would swear to
that as fact. All we have then are these
indefinite circumstances and this indefinite
recollection OF Downing. There is nothing
IN thn nt 81
that changes the force of what was before
the jury before Admitting all to be admis-
slble We cannot tell what effect it might
have on the jury. All llweare called upon to
do, Is to take the whole case a. it now stands
and say what IL our judgment a jury ought
to say a. to the guilt OF Phair. We have no
right to grant new trial unless this new
evidence. in connection with the evidence
IN before, would To our minds raise a rea-
sonable doubt that Pbalr l. guilty. Ii it
Is not sufficient TO raise such a reasonable
coubt We cannot grant u new trial.
As to the evidence of his being in Bran
don on the Sih OF June, we can only say
that he might have been in Brandon as the
evidence tend to show, come down on the
night train and gone to Boston on the four
O'Clock train, and still have Committed this
murder. Taxing the testimony before tho
jury bel, re, and ali before Us now, We are
constrained to say, a. reasonable men, it is
nat evidence from which q reas, enable doubt
ut the guilt of the respondent can be found
Here the Chiei Jug.ice closed his opinion
Of the case. with request that His Honor
Judge Barrett, who had had no connection
with the case teiore. would give his views
of the case. Judge Barrett then made a
careful review of the evidence end applied
the rules Of law governing the case. and
cUncurred Ia all the views Oi the Chief JUS
tice. Judge Barrett discussed some points
more fully than in the opinion of the Chief
Justice. and pointed out the defects in the
newly discovered evidence a. basis for a
new trial, and also that the testimony Of
Carrigan and others, which had been before
the court here would be excluded in a trial
before jury a. being simply hcarsay and
wholly inadnissible. After Judge Barrett
had flushed his review Of the clse. the
Chief Justice directed thy clerk to make
the record that the prayer of the petition
for new trial was denied and th.I the pc
titiOn was dismissed All the Judges con-
CURED in the decision and the opinion OF
the Chief Justice.