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TRIAL OF JOHN W. WEBSTER.
say, in the language of the judgment, as made up, that the prisoner "be
taxen back to the jail, and thence to the place of execution," "thence"
(toes not necessarily imply from that place; but means as well, from
that time, thenceforth, thereafter; and we conceive the intent of the
jubgment to be, that no place of execution is prescribed,-leaving it to
the sheriff to avail himself of the statute latitude, of the jail,
jail-yard,
or house of correction.
As to the omission of prescribing an obedience to the requisition
which should afterwards be contained in the warrant, in regard to the
time of execution, the statute (section 13, R. S., c. 139) is obligatory
upon
the sheriff to execute the sentence "at the time directed by the warrant;"
and it would be an idle formality in the judgment to refer to it: the Court
h_as no power over the sheriff in this particular. It belongs, by statute,
to the hxecutive; or, if they do not define it, it is a matter of discretion
with the sheriff.
For. these reasons, therefore, we submit that there has been no error
in the proceedings, and that this application ought to be denied.
The Attorney General followed Mr. Bemis upon the points made by
him in reply to Mr. Goodrich, and said, in substance:-
My experience in the Courts has failed to teach me a most impor-
tant lesson, if I could be surprised by this application, or by the
ingenuity and subtlety with which it has been urged in the argument.
The learned gentleman, who, by an unusual indulgence of the Court,
has been permitted to unite his efforts with those of the regularly
assigned counsel for the prisoner, has at least succeeded in showing,
that in a judicial procedure involving such vital interests as this, it is
not difficult for counsel of great legal acumen to raise questions, and
allege errors, sufficiently plausible to constitute the foundation of an
apparently sincere and earnest argument. In a struggle for life, much
is conceded to the party who is contending for that great stake, and,
to those who appear in the lists as his champions; and what, in other
cases, might be treated as the desperate expedients of counsel, may,
where such an issue is depending, claim and receive a respectful con-
sideration.
But in this case it is not to be forgotten that all the objections
which are raised are matters apparent upon the record; that they have
already been subjected to the scrutiny of counsel, whose ability and
fidelity ought to satisfy the prisoner and his friends that nothing which
could avail him had been overlooked; and that they have passed under
the revision of this learned Bench, in the patient and careful conduct-
ing of a trial unexampled among us for its duration, and for the scrup-
ulousness with which, during its entire progress, every right of the
prisoner has been guarded.
The statute upon which this application is founded, like that of New
York, of which it is substantially a copy, imposes upon the Court the
responsibility of exercising a sound judicial discretion in granting a
writ of error in a capital case. It is not every mere technical defect
in the proceedings, which can have worked no injury to the prisoner,
and which is first suggested by him after a full hearing upon the merits
and the.finding of a jury against him, that shall suffice to annul all the
proceedings and results of a capital trial. It must be something of a
graver character, by which substantial injustice has been done, or may
have been done, to him that can justify, under this statute, a reversal
of the solemn verdict of a jury. And this seems to have been the view
entertained by the Court in New York of the intention of the legisla-
ture in the enactment of this statute. See Colt's case, 3 Hill, N. Y., 43.
I do not resist this application upon any such radical and pernicious
notion, as that technicalities and forms are not to be observed as impor-
tant and essential in the administration of the criminal law; but, if
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