Year: 1873




STATE OF NEw-YoRK, EXECUTIVE CHAMBER


ALBANY, Marcn II, 1878.


REVEREND AND DEAR SIR: have given to
the representations contained in your letter my most
earnest attention, and have carefully examined all the
testimony, the Official papers, and all the statements
which have been made TO me In the case OF Wlinsm
Foster who lies under sentence OF death for the crime
OF murder In recent case not unlike his, said was
willing to have 1t understood that circumstances OF
very extraordinary would be needed TO induce
me TO interpose for the purpose Of annung the delbe-
rate and well considered determination OF ures and
courts. / find such circumstances attending the
criminal act OF Foster his trial. the verdict or the de-
cison Of the by which the record reviewed
The public interest which has been and still fet IN
this case, the extraordinary efforts which have been
made 10 procure q commutation OF the sentence, the
publicity given these efforts, and the long period OF
time-now nearly two years-which has elapsed since
the crime committed make It proper for before
communicating TO you my final decision, to state the
circumstances and the considerations on which II Ia
founded


THE MURDER AND THE TRIAL


Foster and Putnam his victim, met In railroad car
in the City of NewYork The latter had two ladies in
his charge and consequence Of certain annoyances
by the former, demonstrated with him on his conduct
II does not appear that Putnam offered him any provo
cation Foster who had been on the front platform en-
tered the and down by Putnam, asking him sew
eral times how far he golng and when the latter
declined to and turned away obviously desiring
TO avoid controversy, Foster said, "Wel am going
far you go, and before you leave this car VIII
give you hell" He then returned the front platform
and asked the driver II he had carhook saying he
would learn him Imeaning Putnaml hls business when
he gets of the car; he would learn him to keep his
place" When the car stopped. Foster seized tho car
hook telling the driver, who tried TO stop him. to 60 TO
hell" walked the whole length OF the car on the
hal fnQf mt
and struck him two blows on the head, one OF
which was fatal They we're together sitter the first
conversation between them while the was passing
from the vicinity Of Twentynnthst to Fortysixthst,
far from threefourths Of mle embracing too long
period OF time TO ascrbe the criminal act TO the SUD
den impulse OF passion to exclude the presumption or
premedtaed design. The fatal blow gwen with an
rod which proved by the result TO be deadly
weapon. II is more than feet in length, having at
one end double coil OF iron from inch and quarter
TO an inch and half in circumference, and Is capable IN
the hands OF a man OF ordinary strength without any
extraordinary effort of fracturng the skull at every
blow. Foster had been a conductor on one Of these
street he must have known the capacity for injury
OF the weapon he deliberately chose aud the jury might
rightly presume that intended to do what he took the
most eGectua within his reach to accomplish.


The murder committed on the 26th of April 1911;
the trial began the 22d of May ensuing the verdict
rendered the 25th, this sentence passed on the
10th, and thelIth OF July fixed for his execution
Early in July application was made for a commutaton
Of the sentence and the 9th writ OF error was 1ed
and a stay OF proceedings granted On tho 2lst OF
February 1872 the judgment affirmed at the General
Term In the City Of York. and the 22d Of March
fixed for the execution OF the sentence. The application
for communication and denied by my pre-
Cecessor sh of March On the lth OF that month


writ of error TO the Court OF Appeals with stay OF
proceedings granted and on the 2lst Of January
1g1q he indg mpnt AFT " lastn
buna Thus it appears that all the remedies provided
by for cOnesng the rulings OF the Judge, before
whom the trial took place, have been exhausted and
that his has been affirmed by the two judicial
tribunals having cOgnzanee Of the casethe latter the
court OF last resort The question presented to me is,
whether shall nterpOse the executive authority OF the
state and penalty of DEATH which the law
awards TO murder, for imprisonment for life.


THE RECOMMENDATIONS TO MERCY


In support of the application it is urged that the ver
diet accompanied with recommendation to mercy,
and that it is the duty OF the Executive TO consider the
part OF the other Ths is no doubt so far true,
that IL should commend the TO his most careful and
deliberate consideration. 1t IL appeal which he should
recognize by reviewing all the circumstances not only
with Willingness but with desire TO find In them
Justification for the exercise OF his cemency There is
responsibility under the law the part OF uries in
making such recommendations On the 0ther hand the
responsibility of the Executive in acting upon them IS
very delicate whether they be considered IN reference
to the opinions the jurors who make them, or to con-
sderations OF public policy which, az coDservator OF
the good order of society he is bound TO regard in app
cations to mitigate penalties annexed By the statute to
crimes Nv Predecessor doubt under the inhuences
OF such considerations from the belief that the GRIM
nas Justly condemned to DEATH refused in three
instances to commute sentences, although recon-
mendatons to mercy accompanied the yertiicts.


The application is supported on another ground winch
Aprhl haa "A
of great anxiety in coming to right decision large
majority u the jurors, part q them by aihdaYt ana


h9H 81 written Statements declare that some of their
number did believe Foster intended TO Kill Putnam
that they thought imprisonment for life as great pun
ishme1t he deserved and that they would not have
agreed render the verdict OF murder In the first de-
gree involving the penalty Of death, If they had not
been assured by one Of their associates who proessed
to have knowledge OF the law, that such verdict ae-
companed with recommendation 10 mercy would In
sure Communication Of the sentence With two excep-
toDs these statements all recent and the two ex-
cepoDs bear date than ten months after the mur-
der committed Two applications, as already stated,
were.made my predecessor for Communication OF the
senence-one as late March, 1872; and there is no
evidence that any such statement was presented TO him.
s there any reference to one in his letter denying
the latter application.


JURORS AFTERTHoUGHTs OF NO WEIGHT.


1t settled principle In this state that e1 pare am
dayts by jurors impeachDg tue Verdcts
they have rendered under the responsibility or their
oaths Will not be received by the Courts in support OF
applications FOR new trials Indeed believe 1t may be
stated as a rule far widely accepted that the
Courts will suffer jury TO explain by affidavit the
grounds OF verdict to show that they intended
something different from what they found"' Whether
rejection OF such adavs and De rounded
upon the belief that by reason OF the proacted deper
ations OF jurors in many and the differences OF
opinion to be reconcied coming 10 the requisite una