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



The petition for new trial in the case oI
State OF Vermont vs. John p Phair, was
heard before the Supreme Court at Rutland
and ended in q decision of the court refus-
ing the new trial and di5missing the petit
ton. The following is the substantial part
of the opinion Of the court, as delivered by
Chief Justice Perpoint:
The case of State vs. John p. Phair, is a
petition for new trial and comes before
this court under peculiar circumstances.
| An act of the legislature has been passed
| giving parties under sentence of death new
rights as to making application for new
| trials. This act varies the law, and was
passed in respect to the facts of this partcu-
| lar case, and allows q man under condemna-
ton OF death, previous to his being hung
on permission obtained OF two judges of the
| Supreme Court, 20 apply to this court for a
new trial before jury. Phair applied to
| two Judges and received their sanction. and
| has been fully heard here. In hearing this
case we resolved in the outset to receive
everything offered as bearing on the case
This we did by reason OF the peculiar cir
cumstances surrounding the case. and that
the respondent might have tho heneft OF
everything that he or his counsel conceived
to be material in his favor. We have re
ceived and considered everything that was
shown before the Jury on the trial at which
he was convicted everything presented on
his former petition iOr new trial b.; every
thing before the Legislature. offered as
reason for enacting the law under which
this petition is made. and all the new evi-
dence procured for this hearing. | refer to
this for the purpose OF saying that the
course We have taken in this case is not a
precedent for future applications of this
character.
In this case it appears that at the Septem-
Der term. A. D, 1874, this respondent was
indicted and tried Tor the murder of Anna
Fretz,. That murder like that for which
he is convicted was cOnfessedly committed.
lie was tried and convicted lie brought
his petition for a new trial, and that was
heard and denied now it is again brought
to try to vary that result on the ground of
newly discovered evidence pertaining to the
case.
That sLch murder was committed Is not
questioned. and the whole force of the trial
and subsequent Investigations have been
directed to the question of whether
the respondent was the party who
cOpmitted the murder. 1t he was
not, or there Is reasonable doubt that he
was, he should have new trial. The per-
son who committed that murder possessed
himself OF C, Ttain per. Onal property of the
murdered woman, such a watch, rings,
opera glass and half shawl. These things
were by some person brought to Boston and
disposed of there. This murder was COM
mItted on the night of the Sth, or the morn
ing Of the 9:h OF June. This property late
in the afternoon of the 9th of June was in
- "A EnI q
ton about five clock in the afternoon ol
the day OF tho murder, il the murder was
after twelve o'c.ock on the night of the Sth.
Next morning the rest of the property was
disposed OF IN Bl>iOn. The party trans.
porting this property to Boston committed
this murder That party must have left
Rutland by the early tram in the morning.
leaving about four o'clock, as in no other
way could he have got there to dispose OF
the watch at the time that 1t was disposed OF.
Nothing is shown that the property went in
separate parcels This shows that the party
who took this property to Boston went on
this early train. and had something to do
with the murder.
When You establish the tact OF who took
that property to Boston you settle who COM
mi.ted the murder. The party who took
that property TO Boston passed by the name
OF Il. + cmltn, Ol Dt. AlUdnS. W. Inc
party who pawned the watch to Pierce re-
ceiced a contract and signed the name of
L. +. Smith to the contract lett with Pierce.
This property was coniessedly that of Mrs
fre,zo The man who disposed OF the other
property represented himself as E. F. Smith.
A man who passed by tho name of Z F.
Smith slammed at the Adams House. and
h"-ia.' entered j. ySla--s .non the register
he was assigned TO ,VOm oI, ps
the house. Next day in that room was
found the half shawl of Mrs. Freeze, hence
the conclusion Is irresistible that the man
who took this property to Boston was the
same man who stopped at the Adams House
and disposed of the other property. Who
was the person who took that property to
Boston? The answer to that question set
ties the question of who committed the
mrrder. All the parties who received this
property in Boston testify with more or less
positveneSs that Phar was this man. Their
attention was called to the fact of the mur-
der in a few days. and before the means of
Identification could have passed out OF their
minds, and II they could ever identify a
man with whom they had dealings, the cii-
cumstances were such as to render theIr lden-
t,icatiOn OF Phair reliable. They all tes
THY with more or less pOsItlyeneSs that that
man WAS Phair. There i always more or
less doubt when fact depends on
human collection. The reliability of tes-
tmony in this respect depends largely on
the habits OF the witnesses and their busl-
meas. Some kinds of business call men to
note the appearance of those they deal with.
Some mtn observe closer than Others.
When mans business calls him to note
persons he l. more likely to be correct in
ms identification than others. The brok
ar- bn tn,l IN nf this ha ra
look closely both at the property they take
and the persons who ti Her 1t. These men
are quite positive in their Identification
There l. always liability OF mistake when
there is bat one mans unaided recollection,
but where several persons concur, who have
seen the same man at different times and
under different circumstances, their con-
currence strengthens the conviction that
they are rIsh and removes doubts
There L. also the handwriting on this
pawn ticket. where the name of f. F Smith
Is signed, and the same name on the hotel
register and the name written by PhaIr. We
have these names written under different
circumstances with different objects IN
yisw. - far as the writer was concerned.
Comparing these names - written no man
OF intelligence could come u any other
conclusion than that they were written by
larity in three names written without any
reference to each other, no conclusion can
he reached but what they were written by
the same person In comparisons OF writ
ings OF that kind VIC usually rather depend
on our own eyes than the Judgment OF any
expert but here We have not only our own
Judgment. but also that OF experts that
these signatures were written by the same
man. Now with the name on the pawn
contract and tho name on the register and
the name written by PhaIr in jail, and sup
plcment that by tns testimony OF the per
sons who testify Of seeing him and OF re-
ceiving of him the property, We have tho
fact established that PhaIr was the man
" no disposed of this property IN Boston, as
nearly demonstrated a. demonstration
can be made by a combination OF clrcum-
stances and human testimony. This was
all before the jury, and Is before US now
What Is there u meet 1t and raise in the
mind Of twelve intelligent men reasonable
doubt of these facts 2 That Phalr went to
Bnsson on the four clock train IL c0nced
cd lie claims he did not stop in Boston
but went to Providence. and came back
from there and was on his way back to
Nergenne%. to which place he had ticket
when arrested II Phair went right
through to Providence and did not stay all
night in Boston. ht IL not the man who dis
posed of this property. and registered at
the Adams House. What is there to show
that no went to Providence? There Is
evidence tending to show that he went from
one depot To the other IN Boston. There is
no evidence from any person who testI-
iie- To seeing Phair from the time ho WAS
LETT by the Stewards at the Providence depot,
unit. he WA seen on the train on the lOth
uf juno. coming this way, unless he was
the f. 4. Smith who stayed at the Adams
House and disposed oi tins property.
The circumstances tending to show that
he was IN Prov yIdencc are, first, that he
stated to his counsel that he went TO PrOyl-
dcncu and gave them AN account OF his be
ing IN Providence. and describes what he
saw there lis counsel went there and iaIl
ed to tnd the localities he described with
any satIslactiOn or certainty, but now We
have evidence tending to show them that he
correctly dcsrI lbcd the locality and that
there was such place As he says he stayed
at We have that evidence showing them
that. b,i1ro u. suppose this be true, his
cuun.Cl have been wholly unable to find |