Democratic Sentinel, Volume 9, Number 15, Rensselaer, Jasper County, 8 May 1885 — WARTNER’S SENTENCE. [ARTICLE]

WARTNER’S SENTENCE.

Editor Sentinel; As to “M”s communication in the Sentinel of last week I have but few words, towit: That the people in general are not interested in “X’.’s ability, eloquence, logic, future prospects, or personal appearance. These topics, the burden of “M”s song, are so foreign to the question in controversy that *‘X” hardly feels called upon to answer them in any manner. The public are, however, interested in the commutation of the sentence' ol the condemned man who awaits execution on the 15th day of May, 1885. I wish to notice here briefly some of the legal grounds for the commutation of the sentence, The defendant and prosecuting attorney can not, with the assent of the Court, consen t to a trial for murder in the first degree, by the Court, for our statute expressly prohibits it. See sec. 1821, R. S. 1881, which reads as follows: “The defendant and prosecuting attorney, with the assent of the Court, may submit the trial to the Court, EXCEPT IN CAPITAL CASES.” Also section 1904, reading as follows: “Whoever purposely and with premeditated malice, or in the perpetration of or attempt to perpetrate, any rape. arson, robbery, cr bu glary, or by administering poison of causing the same to be done, kills any human being, is guilty of murder in the fiist degree, and, upon conviction thereof, shall suffer death or be imprisoned in the state prison during dfe, in the discretion of the jury.” it is a general rule of law in the United States that Avhere a confession is made the sentence is a merciful one. Wartner came into court and admitted the offense charged against him by a plea of guilty, seeking to avoid a trial and secure a sentence us ally rendered under similar circumstances. The Court in ordinary cases can pronounce sentence on a plea of guilty, but in capital cases this right is expressly prohibited by sections 1821 and 1904. R. S. 1881, above cited. In this case the record shows that after a olea of guilty the Court tried the questio i of discretion as to death, or life imprisonment.— The following words are i the record on this point, to-wit: “And the Court, having heard the evidence and being sufficiently advised in the premises, finds the defendant guilty on his plea of guilty heretofore entered herein, as charged in the first count of the indictment and assesses his punishment at death.” This proceeding, I think, is a clear encroachment on the st ictly limited meaning of sections 1821 and 1904, R. S. 1881. If the Judge was not authorized o pass sentence without the intervention of a jury, no act of the defendant —confession consent, or other thing—could make the execution a legal one. See 1 Bishop on crim. pro. sec. 316: “If the Court is not entitled to take cognizance of the offense (and according to the above authority we think it had not) yet proceeds with the cause and conducts it to judgment, and sentences the prisoner to imprisonment, the sentence is a nullity and the prisoner may be discharged on writ of ‘habeas corpus.’ And if the Court is not authorized by law to take cognizance of the offense, it can not become authorized by any consent of the defendant.” . If our premises are correct the

defendant had no power to waive a jury on a plea of guilty. Even a plea of guilty in a “capital case” is not a legal forfeiture of a mark’s life. “A valid charge” - and “twelve jurors of good and lawful men” exercising a discretion vested in each of them by law must, wfe thiuk, concur in a finding, as an exercise of that discretion, before a Judge can pronounce the death penalty with the sanction of the law. The defendant could have the ques ion tested by an appeal cor am nobis, or by a petition for a writ of habeas corpus. ; The matter is not in any sensei free from doubt, and is worthy of .careful tudy by courts, lawyers, and those who may be called upon to exercise the hangman’s art. Further as to “M”s communication: He follows the advice of the old maxim, “when you have nothing to say, say nothing and be content,” in an enviable maimer. This advice “M” has so carefully observed in his communication that the most chronic grumblers are

silent as tjie tomb.

X.