The Brattleboro daily reformer. (Brattleboro, Vt.) 1913-1955, 1913-10-25
Strong Indications That a
Second Degree Verdict
Was Contemplated
FERMENTATION
is NOT AVERRED

Two Words which Always Have Been
Associated with First Degree Muir
der Attorneys Disagree.
The degree Of murder for which
conviction would be possible under the
indictment found by the special grand
jury in the ease OF the state against
Lou y. Foster. charged with killing
Ossie Proutv of Halifax, continues to
he subject OF animated discussion i'm
legal circles. and the question gives
Ipromise Of interesting developments.
lnasmueh rs the jurors are enioinei
to secrecy as to their proceedings. III
is of course not possible to obtain amy
statement from them a 70 what iimi-
tations. If any. they intended 10 have
m the indictment - whether they in
tended to make 1T q first degree iuGict-
meut or one of second degree The
prosecuting officers. state : Attorney
A. v. u. Piper and Attorney General
II. f.. Brown. likewise are not saving
/ anything. presumably because of the
.muddle that has arisen.
The indictment itself. however is
matter of rgalic record ANA offers 81
: basis Of speculation. and the pOss hill
p ties under it a- 1T now stands are
. lawyers. There arr some facts how
ever, concerning which there is no Sc
cret. which makes it apparent that
the grand jury did not intend 80 return
5 first degree indictment. INIT rather
e intended to limit it to an Indictment
. in the second degree.
The Indictment reads that the Jury
c finds that on Oct. IL Foster killed and
e murdered Irouty "with force aui
r arms. felouiously. wilmuv. deliberate
lv and with malice aforcthoaght AS
j stated i'm previous issue ii TIE Zee
i former. Judge Miles In making his
charge defined the various degrees OF
murder From the statement given
out as soon III the indictment was
found, to the effect that it was for
L murder in the second dcgrce it is rca-
; sonahlc to suppose that the iury under
I stood following tine Judge : charge.
; that they were expected to have tHc
+ Indictment cover some specific degree.
and it Is also reasonable TO suppose
i that tho wording of the Indictment
& was done by ono Of tine state officers.
.e the iurymen being symcn, and that
whoever drew it expected it to cover
a second degree charge.
II VIII hc noted that tho words
do not appear in the Indictment.
with reconciliation, which have
also been so inseparably connected with
y the idea Of murder III the first degree
no not appear in the Indictment
\ definition Of the degrees of muir
der is given in section 5,c93 of THE
n Public Statutes, which reads rs fol
lows: Murder; degrees defined. Mur
der committed bv means OF poison, OF
by lying in wait. or by wilful, dclihcr
ate and prcmeditated killing. or com
3' mitted in pcrpctrating or attempting
nc to perpctrate arson, rape. robbery ol
ld burglary, shall be murder in the frs
e. degree. All other kinds Of murde
en- shall be murder in the second degree. =
or The foregoing Very strongly iudI
# Gates that the Jury intended to indie
al Foster in the second degree aud sup
posed that they were doing So On til,
other hand it is pointed out that th
indictment follows the statute coverin:
indictments, which does not prescrib
the use of the words with prcmedita
~ ton
The statute which ,prescribes wha
Is am Indictment must show is sectio
. 226S of the Public Statutes and read
4r as follows: 'Indictment for murde
it or manslaughter. In an Indictment 70
ca murder or manSlaughter, the manne
Of in which or the means by which tn
in death of the deceased was caused nee
al not be set forth, but it shall be suff
nd cient in an indictment for murder
" charge that the respondent did feloI
qs iously. wilfully and of his malice afor,
IN thought Kill and murder the d,
he ceased, and in m Indictment for MAJ
Of slaughter to charge that the respoI
ec- dent did feloniously Kill and slay tn
-ho deceased
ar Some lawyers argue that unless Sc
al ton 226S can be shown to he fault
.
permit conviction in the first degre
provided the evidence warrantct
Whether it is faulty or not is a que
L tion that may come before the supren
court One local lawyer of high ran
ern has expressed it as his opinion that
conviction Of murder on the firsct Il
gree would not stand under the indie
ord ment as it Is now worded.
OF Whatever one s deductions from Il
nk wording OF the Indictment OF from Il
tel opinion Of lawyers, the strongest el
ON dcnce that the jury intended to fiji
of an Indictment in the second degree
~. the fact that within a very short tin
90. after it was signed and before Il
in public had an opportunity to see
.raI the statement was made that it was f
tho murder in the second degree, Viii
Snt was so understood by various offica
ON and LAWYERS around the court hous
eed and that it was not until the ne
in dav that any contrary statement W
of made
Referring to the Halifax TRACED