Karl Heim.

The Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India online

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to tell me something. We got up, and he went on to tell me. He
said it was true that he was up in the lot together with Stephen and
Russell Colvin and his son, picking up stones, as Mr. Johnson testified.
That Stephen struck Colvin with a club and brought him to the ground.
That Colvin's boy ran, that Colvin got up and Stephen gave him a second
blow above his car and broke his skull. That the blood gushed out ; that
his father came up and asked if he was dead. They told him no ; ho then
went off. Soon after he caine again and asked if he was dead. They
told him no ; he then went off. Soon after the old man came the third
time and asked if lie was de:iJ ; tiiey told him no ; the old man said, damn
him. Then he (J(^^<l^) took liiin by tlie legs, Stephen by the shoulders,
and the old man round tlie body, and carried him to the old cellar, where
the old man cut his throat with a small penknife of Stephen's. That they
buried him in the cellar b(»t\veen daylight and dark ; that he stood out one
side and kept watch. That a jack-knifo was found which he knew was
Russell's that he had often borrowed it to cut fishpoles. Two or three days
after Stephen hud Colvin's shoes on. Tiiat he (Jesse) spoke to Stephen
and told him that Sal, would know the shoes ; that ho saw no more of
them. That the old man gave Stephen one hundred dollars, and Stephen
promised twenty-five of it to him. After Jesse was put into another
room, when we were permitted to see each other, Jesse told me that he had
informed Stephen of his having told mc the whole affair. Stephen then



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Vol. Ill] The Criminal Law Journal. 37

came into the room. I asked him if he did take the life of Colvin,
He said he did not take the main life of Colvin. He said no more at that
time. A week or ten days after, Stephen and I went up into the court-room
together, Stephen then said he had agreed with Jesse to take the whole
business upon himself, and had made a confession which would only make
manslaughter of it. I told him what Jesf^e had confessed, and he said it was
tme. Jesse told me that in Fehruary, eighteen montlis or more after the
body of Colvin was buried, there came a thaw. That he and Stephen took
up the body, secured the bones and remains in a basket and pulled up a
plank in a place where they ke[)t sheep, and j)ut the bones under the floor.
That the next spring the barn was burnt. That they took the bones and
pounded them up and i)ut them into a deep hole in the river. That the
skull bone burnt so that it crumbled to pieces ; that his father scratched up
some pieces and put them into a hollow birch stump near the road."

The evidence in behalf of the respondents was confined mainly to
an effort to weaken the effect of the confessions by showing the strong
outside influence that was brought to bear on the brothers previous to, and
at the time of their making, the confessions. The judge charged, in
reference to the confessions, that no weight should be attached to a confes-
sion incited by hope or fear, leaving it for the jury to determine whether
the confessions in the present instance were so influenced.

After an hour's deliberation a verdict of guilty of murder in the first
degree was found against each brother. The result was eminently satisfac-
tory to the spectators. Upon being asked if they had anything to say why
sentence of death should not be pronounced against them, both brothers in
the strongest terms protested their innocence. They w ere sentenced to be
executed on the twenty-eighth day of January, 1820.

Petitions were at once made to the Vermont legislature, then in session,
for a commutation of the sentences to imprisonment for life. The petition
of Jesse was granted by a vote of 104 to 31, but that of Stephen was denied
by a vote of 97 to 42. Jesse was quite elated at the news and Ste[)hen
correspondingly depressed. The latter gave up all ho])e, but a new idea
occurred to him. He suggested to his counsel that an advertisement for
Colvin be inserted in the paj)ers. This was a desperate chance, for, even
were Colvin alive, the limited circulation of the papers and the slowness of
the mails would militate greatly against any news being received before
the execution, then less than two months away. Nevertheless the follow-
ing notice was published in the Rutland, Vermont, Herald:

'^Murder."
"Printers of newspapers throughout the United States are desired to
publish that Stephen Boom, of Manchester in Vermont, is sentenced to bo
executed for the murder of Russell Colvin, who has been absent about seven



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88 The Criminal Law Journal. ^[VdI. pp

years. Any person who can give information of said Colvin may sfive
the life of the innocent by making immediate communication. Colvin is
about five feet five inches iiigh, light complexion, light coloured hair, blue
eyes, about forty years of age.

Manchester, Vermont, Nov. 26. 1819.".

The same issue contained an editorial, ridiculing the scheme and
insisting that there was no possible doubt that Colvin had been murdered.
The notice was copied into the New York Kveninff Post of the 29th aftd
happened to be read aloud in one of the New York hotels. Fate decreed that
two bystanders should hear it read, one of whom named Whelpley, former
resident of Manchester, related many anecdotes concerning Cohin and his
peculiarities. The other, Mr. Tabor Chadwick, of Shrewsbury, N.J., pon-
dering over the matter, concluded that C^olvin was then in the employ of his
brother-in-law% William Polhemus, of Dover, N.J., as a farm-hand. Mr.
Chadwick, on his return home, wrote the following letter to the editor of
the Evening Post^ who printed it, and another to the post-master ^t
Manchester. No notice was taken of the latter. • , . ,

Shrew^sbury, Monmouth, N.J., December 6.
"To the Editor of the New York Evening Post:

"Sir: — Having read in your paper of November 29th Jast of tl^e
conviction and sentence of Stephen and Jesse Boorn, pf Maj^chestor,
Vt., charged with the murder of Russell Colvin, and from facts which
have fallen within my own knowledge, and not knowing what facts p^y
have been disclosed on the trial, and wishing to serve the cause of huma-
nity, I would state as follows, which may be relied on : Some years pa ft
(I think between five and ten) a stranger made his appearance in this
county, and upon being inquired of, said his name was Bussell Colvin — that
he came from Manchester, Vt. He api)eared to be in a state of mental
derangement, but at times gave considerable account of himself, his
connections, acquaintances, etc. He mentions the names of Clarissa, liufus,
etc. Among his relatives he has mentioned the Boorns above, Jesse^ as
Judge (I think), etc. He is a man of rather small stature, round forehead,
speaks very fast, and has two scars on his head, and appears to. be between
thirty and forty years of age. There is no doubt but that he .came from
Vermont from the mention he has made of a number of places and persons
there, and probably is the person supposed to have been murdered. He
is now living here, but so completely insane as not to be able to give a
satisfactory account of himself, but the connections of Russell ( 'olvin might
know by seeing him. If you think proper to give this a place in your
columns, it may possibly lead to a discovery that may save the lives of
innocent men. If so you will have the pleasure, as well rfs myself, of
having served the cause of humanity. If you give this an insertion in



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Vol.- Ill] TfliS'' Criminal La^ Joubnal. 39

yotSr paper, pray be sd'good as toTequest the different: papers in New York
and Vermont to give it a place in theit-A/

"I am sir, with sentiments of regard,
^•"" i«^ " :*i -•»•-..) Yours, etc., ..' ' •

^•»^-' -I' Tabor Chadwick."

Mr. Whelpley, however, toolv the matter up and visited Dover, where
Mr. Polhemus took him to the field where* his man was at work. Whelpley
said nbthhig at first and Colvin, for it was he, merely looked at him sharply
and turned to his work again. Tlien Whelpley called him by name. Colvin
Paid that was not his name.; that it had been but that he had changed it.
Further conversation demonstrates! that there could be no mistake in identity,
but Colvin refused absolutely to return to Manchester. Stratagems w^re
employed and he was gotten, upon one pretext or another, as far as Troy,
being prevailed upon without further difficulty to proceed thence to Vermont.

County court was in session at Bennington on December 22, when
someone entered the room and said that Colvin had come. Court broke up
in confusion. Judges, officers, attorneys, litigants, and spectators alike,
rushed out through the windows and doors to see the man whom all sup-
posed to have been murdered. His recognition was imihediate.' Manches-
ter was r^^ached at sunset of Ih^ same day, and, a courier having gone on
in advance, the entire pbpulat'ibn of the community were.gathered at Capfain
Black's tavern. When the stage galloped up a scene of wildest excitement
ensued. Cannon were fijed, and Stephen was brought from his cell to fire
the .first shot, Jesse having been already taken to the State prison at
Winsor, Vt., to begin his sentence.

Upon meeting Stephen and seeing the fetters upon his limbs Colvin
asked, "What is that for? " Stephen replied, " Because they say I mur-
dered you!" Colvin answered, "You never hurt me ; Jesse struck mo with.
a briar once but it did not hurt much." At the instance of the court (Jolvin
was questioned most thoroughly to test his identity and his answers showed
a knowledge of trivial aflEairs that no impostor could have acquired. For
instance, being asked who built the tavern in which he was then sitting,
he replied,' "Captain Munson, and it is all of the best oak timber, too."
which, upon inquiry, was found to be true.

The writer is not informed as to the fact, but avers upon his suspicion
and belief thkt after Colvin's return a surprising number of people were
found, who though they had sedulously refrained from letting it l)e known,
yet believed all thertin»e that the brothers were innocent.

•: -Colvin's mental derangpment was obviously greater than at the time of
his disappearance. He insisted tlmt he owned the farm of his employer.-
With ^lis9 wife he declined i^ have anything to do, merely remarking,
" that is all over with," though of his children he appeared somewhat fond.



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40 Tab Crimikal Law JeoAHAL, [Vol. Ill

^ter a short timo Colvin expressed a wish to he taken back to Now Jersey,
which was accordingly done, on December 29, and he died there a few
years subsequently,

A new trial was petitioned for in each case, upon the ground of
newly-discovered evidence, and upon the petitions being granted a nol pros
was immediately entered in each case. Thus ended one of the most
remarkable trials in the annals of criminal jurisprudence.

It is worthy of note that no corpus delicti was proven. Another error
upon the trial seems to have been the admission of the confessions. There
can be no question of the innocence of the resi)ondents. Stephen was the
first one to suggest, when every other hope had failed, that (>olvin be
advertised for. The confessions, if, indeed, Jesse ever made such a one as
was testified to by Merrill, were probably framed for the puriM)se of mak-^
ing the crime manslaughter or justifiable homicide. The following extracts
from a letter of one of the examining magistrates may serve to shed some
light on the matter :

'•Much was said to Jesso, to get the facts from him ; he was told that
if he should confess the facts it would probably be the means of clearing
him. Jesse at length confessed that Stephen told him that he (Stephen)
gave Russell a blow and laid him aside where no one would find him*
ypon this we sent for Stephen, who was brought here. Jesse now said
that his former confession was not true ; but nothing could now convince
the people that Colvin was not murdered. During their commitment much
exertion was made to get a confession from them. Stephen wrote a
statement of what he said were facts, in which he acknowledged he killed
Colvin, deposited him in the place where the knife and button were found,
and that he took the bones from that place and put thorn under his father's
barn, which was soon after burnt, and the body principally consumed. It
appeared in evidence that several had promised to sign for their pardon if
they would confess, at the same time telling them that there was no doubt
they would be convicted ui)on the testimony that was then against them. A
person in jail with them for perjury testified to a full confession of tho
murder made to him by Stephen and Jesse ; and it was so artfully framed,
so corroborated by other facts, that it had great weight with the court and
jury, though it appears now to liave been wholly false. But he has his end
answered ; he ha^ got bail by the means, and gone oflE."

Burlington, Vt., November, 1905. — The Greeii Bag.



THE PARIS BAR AND THEIR RIGHT TO FEES.
The Paris barristers are in arms against the decision of the Civil
Tribunal in the case of Me. Bonzon, which declares that counsel have no
right enforceable by legal process to their fees. The question of fees has



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Vol. Ill] Thb Crimikajl Law Journal. 41

always been a delicate one in the higher branch of the legal profession
all through its history. This is not the first time that it has caused
trouble in Paris. As far back as 1274 Philip the Bold found it necessary
to publish a.rpyftl ordinance declaring that the honorarium was to be re-
gulated by a. regard to the importance of the case, and the ability of the
advocate, but in no case was it to exceed thirty livres. " And they ought
to be paid," he says, " according to their quality, and according as the
quarrel is great or small ; for it is not reasonable that an advocate who
goes with one horse should have as much as one who goes with two, or
three, or more." If the advocate and his client could not agree upon
the amount, the judge who tried the cause was to determine it, with duo
regard to equity. This decree seems to have settled matters for some
three hundred Tears and more, when, in consequence of some question
yrhich had arisen, Henry III. issued an ordinance in 1579, known as the
Ordonnance de Blois^ which enjoined advocates to put their names to all
the papers which they drew up in a cause, and to subscribe the amount
of fees they had received, in order that they might be taxed, if deemed
exorbitant. In the same year — though whether before or after the pro-
mulgation of this ordinance is not clear — Bouchel, a contemporary advocate
iind legal essayist, mentions that he hapi)ened to be present at the hearing
of a cause when the following little bout between opposing counsel took
place : Mo. Claude Mangot, resenting an interruption by Me. Pierre
Versoris, said to him, sharply, " Maitre Versoris, you have no need to in-
terrupt me. You have said enough j^ourgagner votre avoine.'^ Versoris was
deeply offended, and demanded an apology. At the end of the case, after
having given judgment, the President of the Court addressed Me. Mangot
saying " La cour rna donne charge de vous dire que ce qui se donne aux
avocats pour leur labeur ne se donne jwinf pour forme d^avoine mais vest un
lionoraireJ^

In the reign of Henry Quatre, on May 14, 1G02, an attempt was made
to enforce the BJois ordinance, and Parliament decreed that counsel should
note on their papers the amount of the fees they received and give a formal
receipt for them. This was resolutely resisted by the Parisian Bar, and
they declared that they would rather throw up their practice than condes-
cend to sign receipts for their fees, which would give the profession the
character of a servile calling. An order was then made that all who re-
fused to comply should give public notice of their intention and should
thereafter be incapable of practising as advocates. The morning after the
publication of this decreee all the advocates assembled in the Chambre des
Consultations. They then [proceeded in a body, walking two by two
to the number of 307, to the Registry, where they deposited their ch-
aperons^ and formally declared their intention to abstain in future from the
practice oftheir profession. As to what followed upon this action there



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42 The Criminal Law Journal. [VoK III

are two accounts. Fonrnel says that the King, who happened at the time to
be in Poitiers, was struck with admiration at the noble firmness of the ad-
vocates, and hastened to re-establish them in their functions by letters pat-
ent, ordering them to resume the practice of their profession under the con-
ditions previously obtaining, thus annulling the decree of Parliament, and
giving the victory to the advocates. De Thou, however, says that the King
sent a message post haste, confirming the order of the Parliament, and en-
joining the advocates on their allegiance to obey it. Those who had strips
ped off their gowns were, at the same time, commanded to resume their
profession. The refractory advocates did not dare to disobey the royal
mandate and returned to their duties, and thus the tumult was appeased.
The decree, however, De Thou adds, soon afterwards fell into desuetude.
And there the mattcT appears to have rested till the present time.

The theory on the subject that has always pre\'ailed at the English Bar
is thus stated by Sir John Davys in the Preface to his Reports : " For the
fees or rewards which they receive are not of the nature of wages, or pay,
or that which we call salary or hire, which are, indeed, duties certaiin, and
grow due by contract for labour or service, but that which is given to a
learned counsellor is called honorarium and not merces, being a gift which
giveth honour as well to the taker as to the giver ; neither is it certain or
contracted for, for no price or rate can be set upon counsel, which is
unvaluable and inestimable, so as it is more or less according, to circum-
stances, namely, the ability of the client, the worthiness of the counsellor,
the weightyness of the cause, and the custom of the country. Briefly, it is a
gift of such a nature, and given and taken upon such terms, as albeit the able
client may not neglect to give it, without note of ingratitude (for it is but
a gratuity or token of thankfulness), yet the worthy counsellor may not de-
mand it, without doing wrong to his reputation ; according unto that moral
rule, " Mitlta honest e accipi jHhssitiit quae tamen honeste peti non possunt" In
England the rule has always been that wliicTi is here laid down by Sir John
Davys. A barrister has no legal right to a fee. He cannot sue for it in
a (Wrt of Law, and, as a consequence of this, he is not liable to an action
if through negligence or ignorance, he injures the interests of his client.
And, now that it has been authoritatively laid down that the French bar-
rister is in the same position as his English brother in regard to his legal"
right to fees, the only difference between them seems to be that, while
the English Bar would strongly o[)pose any proposal to give them the right
to sue for their fees, the French Bar is indignant that such a right is refus-
ed to them. — ^Jhe Canadian Law Review,



PREVENTION OF CRIME.

Coporal punishment is said to be dying out in England, statistics
showing that in their convict prisons only eight prisoners were flogged



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Tii.jri]; Teit CRftiiNAL Law Journal; 43

d^Ing[ the ajK^ajr, as compared with eighty-two in 1880-81. The cat, also,
^QiaH -tpldyvls giVl«g>nlac& to.the n)iW(H: instrument of punishment, to wit,
tbo-^bir-db;. J Whil^ this is taking place in conservative England we have
SDraji s«g^©sti»n3 from progressive Western America, one of which, whether
ornot it iadicatc^aoH^turn to ^barbarism, or is an evidence of advanced
einrilisation, 'HdaHcertaihly the dharm of novelty.

'jvr .^ATMLinne^taU' grand jury recently made a report recommending some
csbimges in the. criminal law, which in the o])inion of the jurors would tend
greatly to^xlecrease the possibilit}-^ of criihe. One of these was that in the
cafee of criminals convicted for a third time they should be subjected to
iitiprisinAient for Hfe« The other was that in cases of criminal assaults
wpcsi w-omiHi it should be made- impossible for the offender to commit the
crime a second time. There is much sound common sense in the reasons
given by the grand jury in support of these proposals in view of the axiom
that puiiishment should be preventive rather than punitive. The reasons
sfated'by the grand jury were as follows : " We have been impressed with
the fact that nearly all the crimen brought to our attention, especially those
of violence, hive b33:i C3:n;nitte;l by habitual criminals ; and we have b^on
especially impressed and alarmed by the number of crimes of violence
f^ain5^ xeiti]iiy%Tf^stity. We believe that the attention of the community
shoulS be dire&d te the existence and growth of a criminal class, and that
godrety sh'o\il8*fecogniKe'the criminal folly of permitting the members of the
crhrfilial cla'^s'to be at large' and preying upon society. And we believe that
socfety' should^ recogni:^.e the fact that any adult guilt}- of the crime of rape
Ts deierHng^ of absbtiiteTy n) consideration, and should not be permitted to
^'eitoin'ca]nhle of cofniriitfing that criin:^. . . We are aware thiit these
re^rtmnieivLltioTi^ are radic.il, but we believe that the measures proposed are
both just and humane, from the point of view of the interests of society ;
aji'a we -fifrther believe that such measures would result in lessening crime
ill tn^ State of Minnesota, more than any other ]mnitive measures which
could be devised, and would iinmediately rid this State of a large proportion
of' the habitual criminal class." — The Canadian Law Journal,



'■o - • . AGE LIMIT FOR JUDGES.

, Our intere<itingconte^inporary, the American Law Xofes, says Canadians
defiibt seem to believe (notwithstanding Dr. Osier's chloroform theories)
that; 1^: man has outlived, ; his usefulness to society by the time he
has.|itt*miedi the age of 50,-()(> oi* even 70 years ; in proof of which statement
tbe.W^iter/cites the ca^e of Hon. Mr. Justice Maelennan recently appointed
to.Ae Supreme ( -ourt.^ He was called to the Bar when twenty-four years
oi-age; weiit upan the Bench at fifty-five and at the age of of seventy-two
wn^iproitioted to l^he highest Bench in his country. The writer takes
occasion to^express regret that a.s to the Bench in the United States it has
been thought n^tiossary to write into their law an arbitrary age limit for the



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44 The Criminal Law Journal. [Vol, III

performance of judicial duties ; and claims that the fact of a man having
" reached the age of say seventy years is by no means prima facie evidence
of his incapacity for a judicial office. If anything, such fact is evidence to
the contrary, and particularly when a score of more of those years have
actually been passed upon the Bench and in the acquisition of judicial
training and experience. " The idea which became fashionable some years
ago as to the necessity of youthful vigour, as opposed to experience, has, we
are glad to say, been dying out. Speaking generally, training and experience
are much more valuable commodities than energy or book learning. When
clients find themselves in a tight place, or a tangled question has to be
solved or adjudicated upon, the man who has travelled that road before is
certainly the most useful man to have ; and long-headed business men
know it. — lite Canada Law Journal.



THE RELATION OF PUBLIC OPINION TO LAW.

AN ADDRESS DELIVERED BY ISAAC N. PHILLIPS AT LINCOLN, ILL,, NoV. 9,

1905, ON THE OCCASION OF THE DEDICATION OF THE LOGAK

COUNTY COURT HOUSE.

Felloic-citizens of Logan County :

We perform here to-day an act of the highest civilization. Such »
structure as this beautiful court house would hardly have been built by any
but a free, enlightened and progressive people, and only such a |)eople would
think the formal dedication of such a structure an occasion worthy to be
marked by a public ceremony. Monarchs have often built finer buildings
than this, but they did not have to pay for them themselves. You, fellow-
citizens of Logan county, have built this court house, and it is yours. You
will pay for it yourselves, and I congratulate you not only on the'prosperity



Online LibraryKarl HeimThe Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India → online text (page 6 of 91)