Democratic Sentinel, Volume 9, Number 15, Rensselaer, Jasper County, 8 May 1885 — THE WARTNER AFFAIR. [ARTICLE]

THE WARTNER AFFAIR.

Indianapolis,' May 5,1885.0 Editor of Sentinel: The fate of Weibren Wartner, on May 15, 1885, may be commuted, respited, or postponed. I saw Gov. Gray to-day, and I very much doubt whether he will take any action. — It is his belief that it would have been better to have invoked the aid of a jury in arriving at the proper punishment. The words, “in the discretion of a jury” in all capital cases, seem to be words of jurisdiction and adjudication, and preclude action by the Judge alone. The Attorney General is of the opinion that the sentence pronounced by Judge Ward is void, and presents nothing for the Governor’s action, and this will preclude hope in that quarter. The technical niceties of statute law may not he meekly and patiently regarded by some who cry for Wartner’s blood on the appointed day. If he should be hui:g <. n the sentence of Judge Waul, based on. a plea of “guilty,” and the Supreme Court should afterwards decide that he was executed on a void judgment and warrant, our people, and especially those who directed and carried the execution into effect would regret such action. The Court does not meet until May 12th, and their time for deliberation will be short. The strictness and certainty of legal sanctions, even to technical nicety are, om libatim, paid to secure the rights of free and equal citizenship. The doctrine of equal rights demands a strict adherence to law in meting punishment to the guilty and protecting the innocent. A close adherence to “rule of interpretation conserves the public* good by the prevention of Judicial tyranny.” Not for Wartner, as a. man, but for the sake of the Judge, the jailor, and my neighbors, I want no statute violated to secure Wartner’s death. It is as sacred a duty to obey the law of criminal procedure as the statute defining crimes The country is in danger from an over-zeal to infer guilt and demand extreme punishment of all persons accused of crime, as well as from a morbid desire on the part of jurors to acquit. The dutv of the citizen is to secure to each accused person the same care and effort to follow the approved forms of law in his trial. Now, if Wartner’s sentence is void and his execution is proceeded with, his death, will be recorded as a stain on the history of our community. I shall in my feeble way assist Brother Babcock to secure an opinion of the Supreme Court on the points involved, if possible in time to save or sanction Wartner’s death. If the reader will take the pains to read carefully sections 1767 and 1837 of R. S. 1881, it will occur how the Judge inferred his duty to be to at once fix Wartner’s pun* ishment and pronounce judgment on recording the plea of guilty* I do not say that the sentence is not deserved. I am also of the opinion that by Wartner’s plea, silence and acquiescence he to be estopped from questioning the regularity of the proceedings to the extent of his power to consent. A waiver will be a sufficient re-* ply to many constitutional, statutory and common law rights. . No consent, waiver or request in a criminal trial can however contravene a statute. The definition of Wartner’s crimo

prevents the assessment of his punishment except at the “discretion of the jury.”—Sec. 1904 R. S.. 1881. The constitution- guarantees a trial by jury to determine the law and facts.—Art. 1, secs. 58 and 64.. The statute authorizes the accused to waive a jury, however, “except in capital cases.—Sec. 1821, acts of 1881. A capital sentence is reasonable, just and constitutional, but the death penalty must be carried into effect in strict accordance with law and pursuant to a prima facie valid judgment of a court, or the execution would be murder. A court, in a capital case, has.two branches..— The Judge may receive and record a plea of guilty, but can not proceed with the trial farther without having the opinion of a sworn jury as to whether the accused shall suffer life imprisonment or death. —Moore’s cr. law, sec. 837; 2Bish. cr. law, sec. 630: Rice vs. State, 7 Ind. 332. In capital cases a judge ought to hesitate in accepting a plea of guilty, and as the accused has no power to choose a tribunal, and as the law names the jury, the judge must conform to the law as to jurisdict:on and place no reliance on defendant’s consent.—Griffith vs. State, 36 Ind. 406. In no way can a judge be clothed with a power terpunish against a statutory direction.—1 Bish. crpro. sec. 893. In all except ‘capital cases’ a jury can be waived, which, in effect, states that in capital cases a jury can not ve waived. The right of trial by jury is immutably interlined in tbe constitution and statute, aa applied to Wartner’s case.

The paramount law embodied in the words, “in the discretion of a jury in capital cases” cannot be altered by anything that can be done by the Judge, Pros. Att’y, or accused. —People vs. McKay 18 Johns 219. Wartner can stand in the Supreme Court upon all his rights not waived by his own acts, within his power to act. No possible act, word, or waiver on the part of court, attorneys, or Wartner could enact any new law enlarging the ultimate scope of Judge Ward’s authority in the case. In this case a trial included all proceedings in court after the plea. The Judge, as a branch of the court, £ould accept a plea of “guilty,” when, if he had doubts whether the punishment should be capital, lie ought to have called the other branch of the court to his aid in solving that judicial problem. The jury should inform the judge wdiether the punishment should be capital. I am of the opinion that there are plausible reasons for reversing the proceedings back to the pie of “guilty” on account of being void and insufficient to authorize the Sheriff to take Wartner’s life. If my Bro. Babcock secures the opinion of the Supreme Court directly on the question he will deserve the plaudit of being a faithful servant to his client and the law. lam not employed by Wartner, nor any one in his behalf, but as a lawyer, believing as I do, that no man, however clear his guilt may appear, should be hung without a trial by a proper tribunal, I am willing to assist Mr. Babcock in aving the case reviewed by the Governor and Supreme Court, and after consultation with the Attorney General, whom I believe to possess a degree of integrity and learning sufficient to seen the right result, I have filed a short paper to-day f alling the attention of the Court to a few authorities on the point. I believe in a liberty sanctioned by law, administered on the plane of uniformit ' and equality. Wartner ought to be punished legally, and should he be a victim of a void judgment as a citizen I cannot feel any satisfaction at his death. The Supreme Court is the tribunal to construe the statute and decide whether Judge Ward pursued the proper course.

S. P. THOMPSON.