Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1879-04-11
THE FULL hEFGE-

ST. JoHSsBURv, Vermont, April 10, 1873
Judge Ross said We have given this
matter the best confederation We could and
are fully aware Of the responsibility that
rests upon us both IN regard 10 the prisoner
and the State we feel as any other officers
acting under oath who tave disagreeable
duty to perform ; We teel the need of care to
be exercised in relation to the construction
to be placed upon the new law. The first
petition was granted more as matter Of
course than anything else whether that
action should establish a precedent is
questionable The jldge then read the law
bearing on the case ana continued The in
tent of the law was to give the Judges
chance to judge of the materiality Of new
testimony whether upon submitting It to
the supreme court it would furnish proba-
BILE ground for a new trial As to the testi-
mony of Downing before the court at the
last hearing Mccall says Downing did not
try to identity Phair because. the circum-
stances was considered certain Identification
and if lie failed after five years, in personal
interview, to identify, would injure petition
er's case. The court had refused new trial
on that testimony. The Judge then review
ed Downing's testimony. Phair was cogni-
zant of Downing's affidavit, AMI his answers
to interrogatories in the prison are, there
fore, not strongly corroborative. Few men
could identity stranger after five years.
Downing had seen Phair's photograph and
had seen it before the last hearing all that
ground has been covered and We are not ex-
pected TO 20 over that We have to consider
that the evidence in the case before that was
very strong and showing Phair guilty. Judge
Ross then alluded to the testimony OF
Abrams, the pawn broker, with whom the
watch was pledged on the day OF the murder,
and who identified Phair in Rutland on the
following Sunday Abrams credibility is not
attacked pawnbrokers' business requires
them to scrutinize customers the clerk
the Adams House saw the man write E. F.
Smith write the name on the register and
he saw Phair month later. and was pretty
| positive that lie was the man who wrote on
| the register. Then the clerk found Mrs.
Freezes half-shawl in the room occupied by
the man who signed E. F. Smith. There
was similarity in the writinS-detense
claims too similar-but it is Just as lmprob-
able that different men wrote SO much alike.
| Pierce's testimony Is severely attacked, but
| goods identified as Mrs. Freezes, and with
the name of E. T. Smith on the pawn tick
cts, are found in his possession. While we
would like to decide the other way, We feel
the full court would not consider the evil
| dence sufficient for a new trial.
Judge Powers said to prevent any misap-
prehension as to the result reached, We do
not think the proceedings are the outgrowth
OF fraudulent practices that is not our
theory, as there is nothing to show 1t there
is nothing in the case to show that the Bos-
ton papers or Carrigan were in an illegal
scheme nothing against counsel for de-
fence We go upon the ground that there is 9
lack of proof as required under the statute
of 1878. Judge Powers then went over
the same ground as covered by Judge Ross.
and added that he had heard the evidence
three times, and each time the conviction O.
Phair's guilt was strengthened he was posi-
tive there was no COLLISION between Phair.
friends, and Was satisfied that Carrigan acted
conscientiously but, he concluded. We fee
compelled, in view Of all the circumstances
| to DENY the motion 10 file petition.