The Portland daily press., 1885-08-28

Tails OF the investigation, think it is incumbent
upon me TO communicate to you any information
that may possess that may properly be consd.
cred by you In connection with this application
compile transcript of all the testimony has
Deen furnished your excellency under the provis
ions OF the statutes of the State, and it is not nv
purpose to discuss the facts there disclosed or Ia
araw l any conclusions from such testimony as to
the relative gnllt moral or legal, of the parties
implicated in the crime, OF inanyway seek to pre-
Iudlce the constitutional rights of either. MY on
~ object III addressing you is to call your atten-
ton to the position occupied by the State in dis
covering and bringing to punishment the murder
ers Of Thomas BarroWs, and leave it for you to fin
ally determining whether there are any existing
obiigatlons onsthe part OF the State, towards this
petitioner.
On the eyeningof November IA. 1888. Thomas
BaIroWs, was murdered at hittery in the county
OF York. The crime was involved in mysterv
No motive could at that time be assigned Tor its
commission. The best officers and detectives
were employed to aid in discovering the guilty.
perpetrators, and on November oath following
Mary Z. Barrows and Oscar E. Blaney were ar
rested and placed in Alfred Jail. At the January
term OF the Supreme Judicial Court, held at Saco
III 1884, joint indictment was found by the
grand Jury and the parties were anaigned for tri-
al each entering the plea of mot guilty." On mo-
ton of counsel for Mrs. BarrowS-aleging that
Blaney's defence must necessarily be hostile and
pfeJudclal to her caSe-Judge Virgin, who Dresid-
ed, granted her separate trial.
oscar L. Blaney was called as a witness for the
state, and testified upon the trial Of Mary E. Bar
rows as the States witness. That he was legally
competent to testify cannot be questioned. The
Supreme Court OF Maine has declared that in the
llll OF one OF persons Jointly inulpt-
ed for murder, the other defendant even while the
indictment is still pending against himself on a
plea OF not guilty, may be called a witness for
the State, and allowed to testify against his CO.
defendant. And in some cases it has been held
that II an accomplice when examined as a wit
ness by the State, discloses fully and fairly the
guilt OF himself and his associates he will not be
prosecuted for the otfense disclosed but he can
not by law plead such facts in bar Of an indict-
ment against him. nor avail himself of it upon his
trial Under the English practice when tile ac-
compice makes u full and fair confession of the
Whole truth and is admitted TO give evidence for
@ Ihe crown II ne afterwards give evidence openly
although he is not Of right entitled to lenity, yet
II IS hela that ne has an equitable title to recon-
incubation to the Kings mercy.
In England, by certain ancient statutory reeu-
lations, unconditional promise of pardon was for
merly given to an accomplice if he was called and
examined by the prosecution, and testified fully
and fairly the whole truth but under the more
modern practice of the courts is held that only
an equitable title exists TO be recommended to
mercy.
1t was held in the case of Graham, tried in New
Jersey by Beaseley Chief Justice that if an ac-
complice be convicted after having been made a
witness by the State, aud received as such by the
court such accomplice has an equitable claim to
recommendation to the mercy of the proper all-
thorltles Numerous authorities and OF the high
est character support this view, and it has re-
ceiyed a judicial determination in many of the
courts.
Previous to the time Of entering upon the prose
cutlon OF the case in January, 1884, / am unable
to state, except upon information, the extent OF
character of the interviews had with the petition
er by the agents of the government, nor what aid
was furnished by him to the State in its investga-
tions. am informed, however. that he was ire
quently visited at Aired jail after his arrest by
some OF the agents Of the government and thai
from time to time most valuable information re-
latng to the guilt Of others implicated in the
crime, was voluntarily communicated by him to
the agents and officials OF the State engaged in the
investigation
Upon the trial of Mary E. Barrows. deemed il
my duty as the public prosecutor, in furtherance
of the ends of public Justice after most patient
and careful consideration of the facts and circm-
stances disclosed, to call Oscar E. Blaney as a wit
ness for the State This decision was not reached
until nearly all the testimony in behalf of the
State had been placed before the jury and the
government was about to close its case.
There is no law that would compel him to testi-
fly. He was not obliged to give testimony in be-
half OF the State, and was so instructed by His
After being called he signfed his willingness to
become the States witness. The State received
tieipate the result that might have been reached
by the jury without this evidence. 1t was re-
garded as very important, if not VITAL in the pros
cution OF the case on trial.
The practice OF admitting accomplices to give
evidence against associates in crime has been
adopted upon principles of public policy. They
are not admitted as a matter of course, or upon
their requeSt,ebut the State through its author
lied officers, under all the circumstances attend
ing prosecution, must determine whether such
evidence viii most effectually answer the purpos-
es OF justice. Under our practice the prosecuting
officer OF the State is invested with this delicate
and responsible authority, and upon his own offic
ial responsibility he must determine that ques-
tion.
Under the circumstances attending the prosecu-
ton OF Mary e. BarroWs, it was determined that
the testimony OF Oscar Z. Blaney would be of par
amount aid to the State in turtherance of the ends
OF public Justice; that by Withholding the teStm0-
N.Y. justice might be defeated. A question did
arise at the trial, when he was offered as a wit
ness for the State as to his competency, but the
preSldng justice, after admoniSng him that he
could not be compelled to testify. permitted him
to be sworn, and the full court has sustained the
ruling.
The witness was mt induoad IN v.i,,o +l,a ,,ro
lection OF the law and become the States witness
and criminate himself, upon any promise of favor
| hall OF the States no indemnity, advantage OF
| protection was offered by the public prosecutor
nor was any hope efor pardon or reprieve suggested
| so far as j am informed His testimony came Il
the State voluntarily, and at the time of callinl
| him as witness had no communication or con
yersat1on with him, directly or indirectly. knew
| from the circumstances developed in the progress
OF the trial. and from his former communication
to the officers and agents of the government, wha
the nature OF his testimony must be if he waiyet
| MS constitutional privilege and consented to be
| witness. and felt bound in the performance Of m,
official dutiesto offer it before the jury.
| Had neglected to place this testimony befOr
| the court and iuTy-testimony that was direct
positive, and if believed, conclusive as to the ssu
then upon trlal-Well might | justly have beel
| charged as the public prosecutor with an obstruc
Ion OF pubic justice, with soflicia neglect ant
dereliction of duty, and with desire to screel
from punishment the respondent then upon trial
Inc evidence was offered and admitted. Th
| government has received the same advantages
| would, had its extraordinary favor been pronise
| before receiving his testimony and the fact tina
he did not seek to exact from the government be
| fore giving his evidence some promise of futur
recommendation to executive clemency canno
| lessen any equitable claim that he may have. o
limit the operation of law.
belleYe from the conduct of the judicial pre-
ceedlngs that have taken place that the pet
tloher has an equitable claim upon me as th
PUBIC prosecutor at the time, to a recommends
ton for executive cemency to the extent of
c0mmutaton Of his sentence to Imprisonment 70
ne; ana tlat am bound in duty and good faitl
10 alsGharge this obligation so far as it extends.
Mnle am fully aware Of the responsibility il
mdklng the recommendation the nature of til
J4dlclal proceedings heretofore alluded to, equit
5tole Lisilt ana sound Justice alike require that
should be made There could be no possibl
1qSStllIcdtlon or excuse on my part, moral, equit
'lDle OF legal We're to withhold it, or fail to CON
GEntutllcate 70 you the position occupied by tn
% osale M III bringing to punishment the perpetrator
Inc power Of granting a communication of ser
t tenc5 y vested with the Executive, and if it
ioGla lhat there is such an implied obligation e1
lStlllg towards the petitioner resulting from tn
pIoceeulIes OF the judicial department of tn
g9x,ernnleht, nave the fullest confidence that
VIII be respected and ratified
Very respectfully
HENRY B, CLEAyEs.