Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1905-05-25
Attorneys Argue For and Against
New Trial before Supreme
Court.
MOL0NEY PLEADS FOR IT
pcrham Has Made No Affidavit
Influenced by Lnwycr-Dr. NC.
Wnyne's story about In.
sanity runctured.

Montpelier, May a.-Thc hearing on the
petition for a new trial for Mary Mabel
Rogers now under sentence of death at
tho State prison at Windsor for the muir
der of Marcus Rogers. her husband. in
August. 1907 was begun this morning be-
fore the full bench in the supreme court
room at the state House. Contrary to
spectators was very small and but few
m0n,bers of the bar not connected with
the case were present.
For three hours this morning T. w.
Moloney of Rutland. who was instrument
tai i'll preparing the petition for Il new
trial addressed the court with an earnest
ness, and ut times eloqucncc, that COM
manded the closest attention of all who
heard him.. incidentally Mr.. Moloncy said
in the course of his argument that he
knew nothing about the Facts in the case
as developed at the trial. he did rot argue
whether or not the woman was guilty of
the crime of which she had been convict
ed, he had recently entered the case from
motives OF humanity, and the money
contributed thus far to prepare and sup
port Il petition for a new trial had NOS
been sufficient to pay the expenses.
Mr.. Moloncy first read the affidavits
attached to the original petition, some
20 in number. abstracts of which APP
peared in the Free Press at the time
this petition for a new trial was laid
before hiof Judge Rowcll and Judge
Munson at the Pavilion some three
weeks ago. Mr.. Moloney dwelt parti-
rularly upon the affidavits of w. S.
Lowell, T.. W. Cakes and f.. r.. Flynn
10 the effect that last January Leon
Perham, who is serving a life sentence
1t Windsor for completely in the crime
Tor which Mrs. Rogers WAS convicted.
stated in the presence OF these men
that when he testified against Mrs.
Rogers in the lower court he lied. and
did il to save his own neck. Raising
! ais right arm over his head Mr.. Molon-
ty in this connection said: If this
petition does not prevail and Mary
Rogers goes to the scaffolG it will
stand forever as a fact that she went
to her death because of the perjury
of Leon Perham, and whether or not
she is guilty of the crime for which
The will be executed God only knows,
and God only will ever know"
Among the interested spectators this
morning was Sheriff II. II. Peck of Wind
sor county VINO. if this petition does not
prevail and Mrs. Rogers goes to the gall
lows two weeks from to-day. will be call
ed upon to execute the sentence of the
law In the State prison at Windsor.
Charles A. Mccarthy. the attorney from
hoosick Falls. who secured most of the
lffdavits attached to the original petit
lion. was present but took no part in the
proceedings.
MOLONEY'S BRIEF.
The principal points made in Mr.. Mo-
pney's brief which had been prepared
W him with the assistance of Senter a.
Eenter of this city are as follows:
The entire testimony on behalf of the
prosecution is without any direct contra
diction of the matters set forth In the
affidavit of Lewis Haussleur, the Ben
nington undertaken.
There was no examination of the skull
itself to determine whether or not a frac-
ture of the skull had been sustained The
autopsy, winch appears from the case to
have been somewhat superficial and not
very thorough, is described by the two
phi, s%icians. Daley and Potter. The ex-
animation as described by DIR. Daley in
VOWED no inquiry as to the condition Of
the skull excepting an examination OF
the black and blue spot over the right eye.
Practically the same testimony is given
by DR.. Potter. and neither physician gives
bny evidence that excludes the existence
Of a fractured skull.
Both testified that after the first au-
topsy and on the day following, the brain
of the deceased was removed, in just what
manner and by what means is not stated
" either physician.
But it Is beyond question that 1t was
,ot removed by fracturing the skull it,
jelf or by applying external violence
10 it. Consequently this fracture can
not be accounted for by anything done
in connection with the autopsy.
The witness Hausslcur te~stifes d.
rectly that while preparing the body
Of Marcus Rogers for burial he dis
covered "a compound multiple depress-
I'd fracture of the skull on the back
upper side. just over the ear.
1t cannot possibly be claimed that
any incision or cutting for the remov-
ii of the brain would be made in this
locality and it must therefore be taken
from this evidence. not co~ntradicted by
the testimony at the trial, that there
was in fact a fracture of the skull Of
Marcus Rogers, which was overlook
Id by the physicians who examined his
body.
That a fracture Of the skull is, in
and of itself, "a cause of death, needs
rot to be developed for the fact is too
we'll known. 1t may or may not have
been the direct cause of death, for
Dufocation or asphyxia may have fol-
lowed the injury which caused the
fracture. The condition of the vital