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Mary
Mabel ROGERS
Marriage
At age 17, Mary married Marcus Rogers. She was
noted for being immature and restless, and often stayed away from
home when she was upset with her husband. Rogers gave birth to a
daughter in 1901. When the child was six months old, Rogers ran
into a neighbor’s home crying that she had dropped the baby, who
later died of a fractured skull.
Her husband’s family believed she had
intentionally killed the child. These suspicions were heightened
after Marcus Rogers became violently ill after drinking tea that
his wife had prepared for him. Mary Rogers moved out of the house
shortly after this incident, but her husband hoped they could
reconcile.
The crime
Marcus Rogers found work as a laborer in
Hoosick Falls, New York, while Mary lived in Bennington, Vermont.
Although Marcus pleaded with his wife to join him in Hoosick
Falls, she refused. Mary Rogers struck up relationships with a
laborer, Morris Knapp, and two brothers living in the same
residence house as Knapp, Leon and Levi Perham. Rogers first
approached Levi Perham with an offer of $500 if he would kill her
husband. Levi initially agreed to help her, but he was intoxicated
at the time and later backed out; he did not tell the police
because he felt it was just idle talk.
Rogers then proposed the idea of murdering her
husband to Leon Perham while they lay in bed in early August 1902;
Leon agreed to help her kill her husband, even though Rogers made
it clear that her reason for disposing of her husband was to leave
her free to marry Knapp. Rogers arranged to meet her husband in a
Bennington picnic grove on the evening of August 12, 1902. Leon
Perham was with Mary when Marcus arrived, but apparently Marcus
did not question Leon’s presence. That evening, Mary pretended to
be happy to have seen her husband and spoke with him of
reconciliation.
At some point during the picnic, Mary offered
to show her husband a rope trick she had learned from a friend.
Mary tied Perham’s hands several times, and each time Perham
easily broke free of the restraint, with Mary pretending to be
disappointed when he did so. Mary then challenged her husband to
try the trick. She tied his wrists a few times, and he also easily
broke free. Then Mary “convinced” Perham to try the trick on her
husband. When Perham bound Marcus' wrists behind his back, Rogers
could not break free. Mary took a vial of chloroform from her
purse and forced her husband to breathe it in for about twenty
minutes, until he stopped struggling. Mary went through Marcus'
pockets and removed his life insurance payment book. Mary and
Perham then rolled the body into the nearby river and Marcus
Rogers drowned. Rogers tacked Marcus' hat to a tree with a suicide
note.
Investigation and trial
The investigation begun after the body was
discovered; Perham made a full confession. At Rogers's trial in
1904, Perham was the state's key witness against Rogers. Due to
his testimony (and his youth), Perham avoided a death sentence. At
her trial, Rogers was portrayed as a shameless harlot and an
unwomanly monster. She was found guilty of first degree murder and
sentenced to death by hanging.
Commutation efforts
Following Rogers's conviction, there was a
concerted effort to have her death sentence commuted. State
Representative Frank C. Archibald of Manchester, who was also one
of Rogers' attorneys, introduced a bill in the Vermont House of
Representatives that would have commuted Rogers' sentence to life
imprisonment. The bill was referred to the judiciary committee on
October 12, 1904. On December 6, the committee reported in favor
of its passage. On December 7, a vote on the bill in the House of
Representatives was defeated by a vote of 139 to 91.
On December 9, Representative Archibald
proposed a joint resolution of the Vermont House and Senate to
investigate Rogers' physical and mental condition at the time of
the commission of the crime and at the present time, and to
prepare a report as to her condition for the governor. The
resolution stated that if it should appear that Rogers either at
the time she committed the crime or at present was mentally or
physically unsound, that a reprieve should be requested and her
execution delayed until after the 1906 Vermont Legislative
Session. The House adopted this resolution but the Senate did not.
On May 30, 1905, Governor Charles J. Bell
granted a reprieve to Rogers after the Vermont Supreme Court
denied Rogers' appeal by a 5–2 vote; the reprieve was intended to
allow the appeal to be heard by the United States Supreme Court.
The U.S. Supreme Court heard the case on November 6 and held on
November 27 that the Court could not find that Rogers had
sustained any violation of her Federal Constitutional rights by
the proceedings of the executive or judicial departments of the
State of Vermont.
Investigation into prison behavior
In 1904, the Vermont Commission to Investigate
State Institutions began investigating charges of misbehavior at
the Vermont State Prison, where Rogers was being held. A large
portion of the commission's transcripts focused on its examination
of allegations of inappropriate sexual relations between prison
officers and Rogers.
Execution
After the U.S. Supreme Court decision, Governor
Bell signed Rogers's execution warrant and the execution was
scheduled for December 8, 1905. Rogers inquired on December 7
whether the gallows were being erected, despite efforts having
been made to muffle the construction noise. During the ten days
between the signing of the warrant and her execution, Rogers ate
and slept well, but she declined breakfast on the morning of her
execution.
Governor Bell granted leave to hear an appeal
from Rogers' counsel at 8 a.m. on her scheduled execution day;
however, he found no reason to commute her death sentence. With no
new evidence, he declined to stay the execution and Rogers was
hanged at the Vermont State Prison later that day.
Mary Mabel Rogers's last
seven minutes were probably the best, or at least the best-behaved
of her life. When Sheriff Henry H. Peck and his deputies came for
her at 1:06 p.m. she arose and walked silently to Windsor Prison
Matron Sarah Durkee's parlor where she listened for a few moments
to Father Cornelius C. Delaney's final prayer. Walking calmly to
her doom, she clutched the crucifix chained around her neck, a
last gift from her half-sister Catherine. As she had promised,
Mary then walked unaided and quietly to the scaffold, only
blanching a shade paler as she spied the fatal rope. Still silent,
she mounted the steps, carefully clutching the folds of her black
dress so as not to step on it. As per her request, she was wearing
a new pair of shoes.
A minute later Sheriff
Peck, following the solemn, ghastly ritual prescribed by law,
asked her if there was any reason why the sentence of death should
not be passed upon her. She made no answer, simply continuing to
stare into space as if she had not heard him. He repeated the
question. Still no answer, and it seemed to the 40 spectators
present as if she were unaware of his query. Mary's hands and
ankles were securely tied with rope. Deputy Sheriff Romaine
Spafford placed the traditional black cowl over her head. He then
said to her, "I now execute the sentence of the law, and may God
have mercy on your soul." She nodded and repeated the words,
almost inaudibly, "May God have mercy on my soul." A second later
Deputy Sheriff Angus McAuley pressed his foot on the wooden
trigger and Mary Rogers hurtled downward, the last woman ever to
be executed by hanging in Vermont on Dec. 8, 1905. How had this
seemingly stoic young woman come to this ignoble end?
Depending on one's view, the Mary Mabel Rogers saga might be
suitable matter for either an antique penny dreadful or a Eugene
O'Neill play, a la "Desire Under The Elms." Was she a coldly
calculating, if careless, virago who plotted her husband's demise
for a mere $500 insurance policy and the allure of a new sexual
playmate? Or was she merely a spiritually stunted near-moron with
no sense of right or wrong, a pitiful but inevitable product of
her antecedents and environment?
Whatever Mary's
true nature, surely Marcus Merritt Rogers might have chosen a more
compatible spouse. Both originally from the Hoosick Falls area in
upstate New York, Mary and Marcus met sometime in the late 1890s.
Just 16 when she married the 27-year-old Marcus in 1898, Mary, by
all accounts, was a vicious, ignorant hellion well before they
plighted their troubled troth.
Born on March 9, 1883, the illegitimate spawn
of a criminal father and a mentally deficient mother, Mary became
an orphan six months later and was subsequently reared by a
Johanna Callahan. Immature and restless, Mary hungered for
excitement and continually bedeviled the more conventional Marcus
with her material demands and frequent absences from home. No
matter where they lived—Hoosick Falls, Bennington, Walloomsac or
Shaftsbury – Mary was unhappy. Matters were not alleviated by the
chronic poverty that dogged the four years of their marriage.
Worse was to come. Mary gave birth to a baby daughter in the
spring of 1901, while they were living at Shaftsbury. Six months
later she came running to a neighbor's home, crying that she had
accidentally dropped the baby at home. When the neighbor returned
with Mary, they found the infant dying of a fractured skull. There
was no inquest; unexplained infant deaths were not uncommon in
that era and Mary was the sole witness. But Marcus's relatives
believed that Mary had deliberately murdered her baby. Such
suspicions waxed exponentially several months later, after Marcus
became violently ill after drinking tea prepared for him by Mary.
Shortly after that, Mary moved out of the house. But Marcus would
hear no ill word of his teenage wife and continued to hope that he
could somehow patch up their foundering marriage.
By the spring of 1902, however, there was little to cling to.
Owing to their continuing poverty, Marcus was working as a laborer
on his brother William's farm in Hoosick Falls. During Mary's
infrequent visits there and Marcus' pilgrimages to see her in
Bennington, he pleaded with her to live with him. But Mary always
refused, citing their poverty and her relatively comfortable
circumstances in Bennington.
"Comfortable" was
not the term pious souls would have chosen to describe Mary's
Bennington lifestyle. In the spring of 1902 she was living at the
Spaulding rooming house on East Main Street. Also in residence
there was one Estella ("Stella") Bates, about Mary's age, and of
like ephemeral loyalties and elastic chastity. Both girls had a
taste for night life, and a number of young men frolicked with
them at the Spaulding house and elsewhere. In June 1902, Mary met
two men there who would fatally change her life.
One was Morris Knapp, 21, then living with his family on Birch
Street. When not toiling as a manual laborer, Morris fulfilled his
obligations as a member of the Vermont National Guard. Both
commitments left him with ample leisure, and he was happy to
strike up the acquaintance of accessible ladies like Mary and
Stella. Shortly after meeting Morris, Mary moved out of the
Spaulding house to board at the home of Emmett and Laura Perham on
Beech Street. Also in residence there were the Perham sons, Levi,
28, and Leon, 18. In July, the Perham family moved to a home on
Safford Street. With them went Mary and Morris Knapp. Soon Mary
was enjoying sexual relations with Morris and both of the Perham
brothers.
There is no evidence that Morris Knapp
took his relationship with Mary seriously. Whether he knew about
her husband or not, Knapp was not the kind of person to worry
about such formalities. He may have believed her when she told him
Marcus Rogers was her brother. Maybe not. What he did believe was
that they were having a very good time on Mary's mattress and box
springs during those long summer nights in her second-floor
bedroom in the house on Birch Street. That was enough for him.
Unfortunately for Marcus Rogers, Leon Perham took his relations
with Mary very seriously. By the middle of July he was sexually
besotted with her. And Leon, like Marcus Rogers, was not a very
shrewd person, so it took Mary little time to persuade him to the
ends of her dread purpose. That purpose, which she unfolded to him
in early August pillow talk, was to murder her husband, Marcus.
Leon was Mary's second choice. She had already approached his
brother, Levi. On Sunday, Aug. 10, she had asked him to help her
kill her husband. She promised him she would pay him "$500 clean
dollars" from Marcus' life insurance. Levi, who had been drinking
heavily, initially agreed to the proposition. But after sober
second thoughts, he backed out. Strangely, he did not inform the
Bennington police authorities about Mary's murderous scheme. He
did tell his mother, Laura, but both of them agreed that it was
just idle talk.
It wasn't idle talk to the
infatuated Leon. The next day he agreed to help Mary, even though
she made it clear her primary motive was the freedom to marry
Morris Knapp. All was now in readiness except the presence of the
victim. He duly appeared on the afternoon of the 12th. After
meeting Mary at the Spaulding house at her invitation, Marcus
sauntered with her through the Bennington streets, pleading again
that she live with him at his brother's farm. They parted about 6
p.m. and Mary's version of their farewell was that when she
refused to return to him, Marcus became hysterical. Pulling out
his insurance payment book, he hurled it into her lap, demanding
that she take it, as she would "never look on his living face
again."
Whatever Mary's later lies, it is an
established fact that Marcus arrived an hour later at the
Bennington home of his cousins, Mabel and Myrtle Phillipott. He
said nothing to them of his marital turmoil and he showed them his
insurance book. He left about 8 p.m., saying he was going to meet
his wife. An hour later, Marcus dropped in on Frank Shaw, another
relative, at his home on Congress Street. Marcus left there about
10 p.m. and was never seen alive again by anyone except his
murderers.
Leon was sleeping when Mary came to
his room on that very day. She awakened him, and after they
discussed their plans she said: "Are you ready?" Leon assented —
and immediately fell back to sleep. Mary awakened him again at 11
p.m. He got dressed and they silently tiptoed down the back stairs
of the house and into the night.
It was a warm
night, dark and cloudy. After walking for a few minutes, they
arrived at a wooded area by the Walloomsac River known as Morgan's
Grove. A half hour later Marcus Rogers showed up. Marcus didn't
seem to find Leon's presence there odd, and they sat on a stone
wall chatting for a few minutes.
The critical
moment came about 11:30 p.m. when Mary said to Marcus, "Stella
Bates did some tricks today with a rope. Let me show them to you.
Leon, give me that rope." Taking the rope that Leon had brought,
Mary said to Marcus "Give me your hands." She tied his hands
behind him and asked him to see if he could escape her cunning
knot. She carefully disguised her chagrin when he did so easily.
Turning to Leon, she said, "You take the rope and tie it."
As soon as Leon tied Marcus's hands, Mary grabbed his head and
shoved a bottle of chloroform underneath his nose. Even as Marcus
hollered, "Stop!" Mary screamed to Leon, "Hold his legs! Hold his
legs!" It took 20 minutes for Marcus to die, as Mary kept the
bottle under his nose and Leon hung on to his thrashing legs.
Finally, Marcus stopped moving and Leon and Mary fell back in
exhaustion.
Leon was beside himself with panic
but Mary was equal to the awful moment. "You've got to take the
jackknife out and cut the rope and get it off his hands," she
commanded. "Then you take him and roll him into the river and
cover him up so that nobody can see his clothes." Before the body
splashed into the Walloomsac, however, Mary had the presence of
mind to rifle Marcus' pockets and retrieve his insurance payment
book. Then, Mary picked up Marcus' hat from the ground. Nailing it
to a nearby tree, she pinned a "suicide" note to it, carefully
composed several hours before. It read:
Blame no
one as I have at last put an end to my miseberl life as my wife
nows I have every threatened it, every nows I have not enything or
no body to live for no one can blame me and so blame no one as my
last request.
Marcus Rogers
P.
s. May hope you will be happy
The two killers
then returned to the Perham home, removing their shoes and
tiptoeing back up the stairs.
The crime scarcely
needed investigation. Marcus's corpse was discovered 34 hours
later. An inquest was held at which Levi Perham testified that
Mary had asked his help in killing her husband. Minutes later, a
conscience-stricken Leon Perham broke down and made a complete
confession. On Saturday evening, Aug. 16, Mary, Leon and Stella
Bates were arraigned on first-degree murder charges. They pleaded
not guilty.
Although Mary Rogers was defended by
competent lawyers, her trial was almost a formality. Leon Perham
was the chief witness against her, and the circumstantial evidence
was so overwhelming that her lawyers, Frank Archibald and Daniel
A. Guiltinan, did not call a single witness to testify in her
defense. What hurt her most with the jury, however, was her
seemingly cold-blooded demeanor. Characterized by a journalist as
a look of "brutal don't care," Mary's impassivity was interpreted
by many as evidence that she was an "unwomanly" monster. Just
after Christmas of 1903, Mary was sentenced to death, with a
tentative execution in February 1905.
Given the
cursory nature of her trial, the ensuing fight to save Mary's life
was a surprisingly hard-fought contest. Her best hope was the
Vermont Legislature, which then had the sole power to commute a
death sentence. Only one woman had ever been executed in Vermont,
and Mary's chances for a commutation seemed good. But her
champions suffered a preliminary defeat on Nov. 16, 1904, when the
Vermont House of Representatives voted down a bill to abolish the
death penalty.
Efforts then turned to the floor
fight over the bill prescribing Mary's commutation. Mary's fight
for mercy was led by the Rev. D. J. O'Sullivan, a Catholic priest
from St. Albans. His plea was just as stoutly opposed by the Rev.
D. L. Hilliard, a Congregational minister from Cabot, who shouted:
"Gentleman, you dare not vote to commute this woman's sentence!
You dare not do it! I swear to you, gentlemen, before my God, if
she was my own sister, I would vote to hang her!"
The final vote on the bill to commute Mary's death sentence was
139 to 91. Rebuffed subsequently and repeatedly by the Legislature
and Gov. Charles J. Bell, Mary's partisans turned their efforts to
the appeals process. They relied chiefly on fresh affidavits
collected by Mary's lawyers. The most important of them contained
the testimony of Dr. Leroy D. MacWayne. The doctor swore under
oath that he examined Mary Rogers in his Hoosick Falls office on
Sunday, Aug 10, 1902. MacWayne had determined Mary was pregnant
and that she was suffering from "puerperal insanity" as a result.
Windsor Prison Supt. Wilson S. Lovell testified in his affidavit
that he had witnessed an interview in which Leon Perham had
admitted perjuring himself at Mary's trial. Additional affidavits
supported the claims of Mary's partisans that she and her whole
family were mentally subnormal. Still another affidavit from
Bennington undertaker James Walbridge insisted that he had found a
compound fracture in the skull of Marcus Rogers, belying the
belief that he had been killed by chloroform asphyxiation.
The evidence of the appeal affidavits quickly collapsed. Mary's
opponents produced counter-testimony impugning Dr. MacWayne's
professional reputation. They also cited overwhelming evidence
that Mary had been in Bennington on Aug. 12. Investigation of Leon
Perham's prison interview disclosed that he had admitted lying at
Mary's trial but never specified the matter of his perjury. And
Walbridge's testimony was dismissed, it seeming improbable that
two autopsy physicians could have missed a compound skull
fracture.
On May 19, 1905, the Vermont Supreme
Court justices heard Mary's appeal based on the affidavits and on
May 30, it was denied by a vote of 5-2. Gov. Bell immediately
granted a reprieve so that a writ of error could be sought from
the United States Supreme Court. Lawyers T.L. Jeffords and F.M.
Butler argued Mary's case before the nine justices on Nov. 6,
1905.
Their argument concerned solely the
technical issues relating to her sentence and its execution by the
Vermont courts. On Nov. 27, U.S. Supreme Court Justice William R.
Day handed down the decision denying Mary's last hope for legal
salvation.
Mary wept when informed of the
Supreme Court ruling. But she soon pulled herself together as
preparations commenced for her scheduled hanging on Dec. 8. In the
aftermath of her sentencing Mary had angrily spurned religious
consolation; when her mother Johanna offered to bring her a Roman
Catholic priest, Mary sputtered, "You can take your priest and go
to hell. I have no use for him." She now relented, welcoming both
the Rev. Father Cornelius C. Delaney and Windsor Prison chaplain
W.H. Hayes to her death row cell. There, she spent the last two
weeks of her life in the constant company of prison official
Merton Loukes and his wife, who were there to keep a "suicide
watch" on their prisoner. Mary also whiled away her remaining time
by crocheting aprons, her gifts to those who had given her
financial and moral support during her long imprisonment.
Crocheting was not all Mary was up to during her prison stay. An
investigation of the Windsor Prison in 1905 revealed that Vernon
Rogers, a convicted rapist acting as a prison "trusty," had
enjoyed access to Mary's cell during the previous March. Owing to
the laxity of prison officials, Rogers had procured a key to the
front locks of Mary's cell. The result was unfettered
fraternization for ten days, during which Mary had sexual
intercourse several times with Vernon Rogers.
The disclosure of her jail sex came at the worst possible time for
Mary. Lurid gossip about her had been repeatedly denied by prison
officials – especially the rumor that they had deliberately given
male prisoners sexual access to her in hopes she would cheat the
hangman by becoming pregnant. The Vernon Rogers episode seemingly
confirmed such rumors and constituted evidence that Mary was an
unrepentant, scheming slut, rather than the moronic damsel in
distress championed by her supporters. The scandal may have been
the critical element in the failure to save Mary Rogers from the
gallows.
But the efforts to save Mary's life
continued to the bitter end. Thanks in great part to the tireless
campaigning of Mrs. William J. Blickensderfer of Connecticut, a
self-appointment Rogers champion, Gov. Bell was deluged with
petitions from all over the United States demanding he do
something to stop her execution. Typical of such heartfelt
effusions was a letter from the board of the United Women of the
Republic in Cleveland, Ohio. Signed by Mrs. Stephen Buhrer, the
wife of a former Cleveland mayor, the letter focused on the
barbarity of capital punishment, especially for a woman, and
concluded, "It would be a shame and a disgrace in this enlightened
day to execute a woman who for her actions was irresponsible at
all times."
Such efforts continued to the last
minute, with Gov. Bell granting a hearing to hear Mary's appeal by
attorneys Charles A. McCarthy and E.B. Flinn at 8 a.m. on her
death day. After hearing them out, Gov. Bell stated that the facts
did not warrant further delay. And it is only fair to say that,
notwithstanding the frantic campaign to save Mary Rogers, Gov.
Bell may well have represented majority opinion concerning Mary
Rogers. Buried in a dusty file at the Vermont Historical Society
in Barre is an ample file of letters applauding Bell's decision to
let the Rogers execution go forward. Typical of such effusions was
the missive of Brattleboro attorney James Hooker, who, like most
partisans on either side of the Rogers controversy, invoked the
Deity to support his views, writing, "If ever a person deserved
hanging, this wretch did, and I thank God the law has been
vindicated." No less effusive was the praise of second-year
Harvard Law students Carroll M. Perkins and John B. Roberts, who
boasted that they took "honest pride as citizens of New England"
in Bell's steely implementation of the law.
Mary
played her part well in the final grisly scenes. After a good
night's sleep, she awoke at 5 a.m. and dressed herself without
aid. She then labored over a last note to prison Supt. Lovell. It
read:
Dear Mr. Lovell,— As I am not much in
speaking, I pen you a few words as an expression of my extreme
gratefulness for your extreme friendness [sic] bestowed upon me
since in your care.
Mr. Lovell, I may not always
have done as well as I might have done, perhaps, but my only means
of atonement now for what is past is to tell you that I am sorry
and heartily sorry. I know that you have a very kind heart and I
am bound to think that I may obtain from you forgiveness.
You know that Jesus tells us, "If thy brother trespass against
thee and turn again to thee saying I repent, forgive him. Be ye
tender-hearted and forgiving, even as God for Christ's sake has
forgiven you in his name."
Mary skipped both
breakfast and lunch on her last day on earth.
It
appears that the other actors in Mary's final scene may not have
played their parts as well as she. Although there were at least 40
spectators to her death, descriptions of her death differed
widely. The real truth may never be known, as the only official
account of her execution was a very sketchy release written by a
committee of three reporters, the only representatives of the
press allowed into the prison by Supt. Lovell. Other supposedly
eyewitness descriptions, however, eventually leaked out and they
suggested that the hanging was grotesquely botched. Owing either
to an unforeseen elasticity in the hemp rope or the weight of
Mary's body, the rope stretched so much as she fell through the
drop that her feet were seen to hit the ground below. Prison
officials denied that her feet remained there, claiming that she
bounced back up in the air. Other witnesses, however, stated that
it was found necessary for Deputies H.A. Bond and P.C. Tinkham to
grab the rope above Mary and hold it up for the entire 14 minutes
it took her to die. This account, however, was angrily denied by
prison officials and also by one of Mary's original lawyers,
Daniel Guiltinan, who witnessed her death. In any case, her
execution clearly malfunctioned at the most basic level, as her
neck was not broken by the initial drop and the 40 witnesses
watched uncomfortably as she agonizingly strangled to death. One
attending deputy was later quoted as saying, "I had to turn away
my head. May I never be commanded to take part in another such
undertaking."
The execution of Mary Rogers did
not put an end to arguments about her degree of guilt. Although it
was not brought up at her original trial, the burden of Mary's
subsequent defense was that she was either insane or at least not
intelligent enough to be legally responsible for killing Marcus
Rogers. As Mary came closer and closer to the gallows, more and
more persons came forward to insist that her whole family was
notorious for its mental instability and that she herself had
never been better than a "half-wit." (Judging from the trial
record, the same could have been said of Marcus Rogers, Stella
Bates, Morris Knapp and both Perham brothers.) Suffice it to say
that Mary Rogers was probably mentally deficient, virtually
uneducated and not intelligent enough to cover the least of her
tracks in the clumsy plotting of her husband's death. The last
word on the Rogers case therefore should go to the anonymous
Bennington Banner reporter who covered her trial and sentencing
for the hometown crowd. Commenting on Mary's seemingly cold,
calculated courtroom demeanor, the journalist acknowledged popular
perceptions of her "unwomanly" behavior, but offered this
persuasive demurral: "The impression she gave the reporter was
that she is a stupid, ignorant woman, whose stupidity has been
mistaken for nerve."
John Stark Bellamy is a
writer from Corinth.
Supreme Court of Vermont
199 U.S. 425 (26 S.Ct. 87, 50 L.Ed. 256)
MARY
MABEL ROGERS, Appt., v. HENRY H. PECK and Wilson S. Lovell.
No. 368.
Argued: November 6, 1905.
Decided: November 27, 1905.
Opinion, Day
The appellant, Mary Mabel Rogers, having been convicted and
sentenced in the county court of Bennington, in the state of
Vermont, of the crime of murder in the first degree, filed her
petition on June 19, 1905, for a writ of habeas corpus against the
sheriff and superintendent of the state prison, in the district
court of the United States for the district of Vermont. The
petition, having been heard, was denied on June 22, 1905. From
that order an appeal was taken to this court.
The conviction of appellant was had at the December term, 1903, of
the Bennington county court, and she was sentenced to be confined
at hard labor in the state prison at Windsor until the 3d day of
November, 1904, and on and after that day to be kept in solitary
confinement until February 3, 1905, on which day she should suffer
the penalty of death by hanging. On the first day of February,
1905, the Governor of the state of Vermont reprieved the execution
of sentence until June 2, 1905. On April 29, 1905, the appellant
presented a petition for a new trial to two judges of the supreme
court of Vermont. On May 5, 1905, the judges made an order
allowing the petition for new trial to be filed, and fixed May 10
for the hearing thereof. After hearing before the supreme court,
sitting at Montpelier, Washington county, on May 30 an order was
made dismissing the petition, and refusing the new trial. Rogers
v. State, 77 Vt. 454, 61 Atl. 489. On June 1, 1905, the execution
of sentence was further reprieved by the Governor until June 23,
1905. Thereupon appellant filed her petition in the Federal court
for the writ of habeas corpus, which was dismissed, as heretofore
stated. On the date of the dismissal of her petition (June 22,
1905), the Governor further reprieved the execution of the
sentence until December 8, 1905. The appeal to this court was
allowed on June 22, 1905. The petitioner (appellant) averred that,
by the various proceedings in the state courts and her
incarceration in the prison in solitary confinement, she has been
restrained of her liberty and is about to be executed without due
process of law, guaranteed for her protection by the 14th
Amendment to the Constitution of the United States.
Messrs. Tracy L. Jeffords, T. W. Moloney, and F. M. Butler for
appellant.
Argument of Counsel from pages
427-428 intentionally omitted
Mr. Clarke C.
Fitts for appellee.
Argument of Counsel from
pages 428-431 intentionally omitted
Mr. Justice
Day delivered the opinion of the court:
For the
reversal of the judgment and order of the district court of the
United States, discharging the writ and remanding her to the
custody of the Vermont authorities, appellant relies upon the
following specifications of error:
'First.
Because the petitioner was and is deprived of her liberty by the
state, and subjected to the punishment of solitary confinement
without any statute authorizing such punishment, and without any
sentence of any court directing such punishment, and therefore
without due process of law.
'Second. Because the
supreme court of Vermont, having taken jurisdiction of the
petition for a new trial, and having failed to comply with the
requirements of law in respect of ordering a stay of execution and
fixing the time for the execution of the petitioner, has failed to
fix a day for the execution, and the Governor of Vermont has no
right or authority to fix such a day, and the petitioner is being
held to be executed in accordance with a precept not authorized by
law, and which is not in and of itself due process of law.
'Third. Because the state of Vermont, having failed to maintain an
appellate court in the County of Bennington, as required by its
Constitution, has deprived the relator of the opportunity to be
heard by a court of competent jurisdiction, and thus deprived her
of due process of law.
'Fourth. Because the
Governor of Vermont, having issued his order requiring execution
of the petitioner on December 8, while proceedings were pending in
the courts of the United States for her relief on habeas corpus,
said order of the Governor is to be deemed null and void, and the
petitioner should be released from custody thereunder.'
We shall notice these several assignments in the order named.
As to solitary confinement of the prisoner, it is not contended
that she was not properly sentenced in this respect by the court
of original jurisdiction. The statute of the state of Vermont (Vt.
Stat. § 2007) provides:
'When execution is not
to take place until after six months from date of sentence, the
court at the same time shall sentence the respondent to hard labor
in the state prison or house of correction until three months
before the time fixed in the sentence of death for execution
thereof, and shall also sentence him to solitary confinement in
the state prison or house of correction from the expiration of the
sentence to hard labor until the time of execution.'
The court, in sentencing the appellant to be hanged on the first
Friday of February, 1905, in pursuance of this statute, imposed a
sentence of three months at hard labor until within three months
of the time fixed for the execution, and three months of solitary
confinement next before the day of execution.
The complaint in this behalf is not of a sentence alleged to have
been imposed in violation of law but because of the manner in
which the appellant has been kept in confinement in prison after
the original day fixed for the execution of the sentence. She
alleges that she is suffering solitary confinement without due
process of law, within the meaning of the 14th Amendment. If she
is held in such confinement by the state authorities,—which the
record does not disclose, the confinement shown being close rather
than solitary,—we are of the opinion that no case within the
Federal protection is made. Re Medley, 134 U. S. 160, 33 L. ed.
835, 10 Sup. Ct. Rep. 384, is cited and relied upon by counsel.
That case presented an entirely different question. It was there
held that a sentence under a state law passed after the commission
of felonious homicide, affixing the punishment of solitary
confinement for a period of six months in addition to the death
penalty, was an ex post facto law within the meaning of § 10,
article 1, of the Federal Constitution, and therefore void. In
Rooney v. North Dakota, 196 U. S. 319, 49 L. ed. 494, 25 Sup. Ct.
Rep. 264, it was held that a statute which substituted close
confinement in the penitentiary for a period before execution
longer than had theretofore been authorized for confinement in
jail was not an ex post facto law. In the present case no sentence
or law is being violated, and, assuming the appellant to be held
in solitary confinement, there is nothing to prevent her having
relief at the hands of the state authorities, and nothing to show
that the appellant is being deprived of her liberty in violation
of any right secured to her by the Federal Constitution.
The extent of the right of the Federal courts to interfere by the
writ of habeas corpus with the proceedings of courts and other
authorities of a state is carefully defined by statute. When a
prisoner is in jail he may be released upon habeas corpus when
held in violation of his constitutional rights. Rev. Stat. § 753,
U. S. Comp. Stat. 1901, p. 592. In the case before us, assuming
for this purpose that the appellant has been properly convicted
and sentenced of one of the gravest offenses known to the law, she
is properly restrained of her liberty while in custody, for the
purpose of making the sentence effectual. If her custodian is
improperly restricting her freedom more than is necessary or legal
under state law, there is no reason to suppose that the state
authorities will not afford the necessary relief. And certainly
there is nothing in this branch of the case to justify Federal
interference with the local authority intrusted with the keeping
of the prisoner.
The reluctance with which this
court will sanction Federal interference with a state in the
administration of its domestic law for the prosecution of crime
has been frequently stated in the deliverances of the court upon
the subject. It is only where fundamental rights, specially
secured by the Federal Constitution, are invaded, that such
interference is warranted. Ex parte Reggel, 114 U. S. 642, 29 L.
ed. 250, 5 Sup. Ct. Rep. 1148; Re Converse, 137 U. S. 624, 34 L.
ed. 796, 11 Sup. Ct. Rep. 191; Allen v. Georgia, 166 U. S. 138, 41
L. ed. 949, 17 Sup. Ct. Rep. 525; Hodgson v. Vermont, 168 U. S.
262, 42 L. ed. 461, 18 Sup. Ct. Rep. 80; Brown v. New Jersey, 175
U. S. 172, 44 L. ed. 119, 20 Sup. Ct. Rep. 77; Re Frederich, 149
U. S. 70, 37 L. ed. 653, 13 Sup. Ct. Rep. 793.
As to the second assignment of error,—arising from the failure of
the supreme court of Vermont to grant a stay, and fix time for
execution of the sentence when it entertained and denied the
petition for a new trial,—at the time of the ruling in this behalf
the prisoner had been reprieved until June 2. The decision was
made before that day had arrived (May 30th). It is difficult to
perceive any good reason for requiring the court to fix a time for
sentence which was already definitely set by the reprieve of the
Governor. It was the opinion of the supreme court of Vermont that
it was not required to do so, and this decision cannot be reversed
by Federal authority. It has been so frequently ruled by this
court, that it is scarcely necessary to cite cases, that the
Federal courts will not, by writs of habeas corpus, undertake to
reverse the proceedings of the state courts, while acting within
their jurisdiction, under statutes which do not conflict with the
Federal Constitution. Re Shibuya Jugiro (Shibuya Jugiro v. Brush)
140 U. S. 291, 35 L. ed. 510, 11 Sup. Ct. Rep. 770; Re Wood (Wood
v. Brush) 140 U. S. 278, 35 L. ed. 505, 11 Sup. Ct. Rep. 738;
Andrews v. Swartz, 156 U. S. 272, 39 L. ed. 422, 15 Sup. Ct. Rep.
389.
Whether, when the Governor had issued a
reprieve which carried the date of execution beyond the time of
decision in the supreme court, such action rendered unnecessary
the fixing of a new day for execution, was purely a question of
state practice, not controlled by the Federal Constitution or
laws, and upon which the state court had final jurisdiction.
Lambert v. Barrett, 159 U. S. 660, 40 L. ed. 296, 16 Sup. Ct. Rep.
135.
As to the third assignment, that the state
of Vermont had failed to maintain an appellate court in the county
of Bennington, as required by its Constitution, and thereby
deprived the appellant of an opportunity to be heard in review by
a court of competent jurisdiction, the state has the right to
determine for itself the courts in which crime may be prosecuted,
and the appellate tribunals, if any, to which such causes may be
carried for review. McKane v. Durston, 153 U. S. for review.
McKane v. Durston, 153 U. S. 913. Due process of law, guaranteed
by the 14th Amendment, does not require the state to adopt a
particular form of procedure, so long as it appears that the
accused has had sufficient notice of the accusation and an
adequate opportunity to defend himself in the prosecution.
Louisville & N. R. Co. v. Schmidt, 177 U. S. 230, 44 L. ed. 747,
20 Sup. Ct. Rep. 620; Wilson v. North Carolina, 169 U. S. 586, 42
L. ed. 865, 18 Sup. Ct. Rep. 435.
The appellant
had the right, by the laws of the state, to have a jury trial
before a competent court. Upon exceptions, duly and seasonably
taken for errors of law alleged to have occurred upon the trial,
the appellant had a right to review in the supreme court (Vt.
Stat. § 1961); whether this court should be held in each county,
or at the state capital for all the counties, is entirely a
question of state procedure, presenting no Federal question for
review here.
The fourth assignment of error
calls for the consideration of § 766, Rev. Stat. of the United
States, as amended. 27 Stat. at L. 751, chap. 226, U. S. Comp.
Stat. 1901, p. 597. This section provides in substance that any
proceeding against a person imprisoned or confined or restrained
of his liberty, in any state court, or by authority of any state,
pending the proceedings or appeal in habeas corpus cases in the
Federal courts, and until final judgment therein, and after final
judgment of discharge, shall be null and void. The contention for
the appellant in this behalf is that the order further staying
execution of the sentence by the Governor of Vermont, made on June
22, 1905, granting a reprieve until December 8 of the same year,
was made pending the habeas corpus proceedings in the Federal
courts, and is therefore void. The order of reprieve was made on
June 22, the day upon which the writ was dismissed and appeal
allowed to this court, just after the petitioner was remanded to
the custody of the state authorities, and very shortly before the
appeal here was allowed. The power of the Governor of Vermont to
grant reprieves in cases of murder is ample. Vt. Const. Amend.
art. 8, chap. 2, § 11. And such power is neither granted nor
withheld by the Federal Constitution. Storti v. Massachusetts, 183
U. S. 138, 46 L. ed. 120, 22 Sup. Ct. Rep. 72.
It is perfectly apparent that it was exercised in the present
instance for the very purpose of permitting the prisoner to appeal
to this court, and not to render ineffectual or in anywise
interfere with the jurisdiction and orders of the Federal courts.
Statutes should be given a reasonable construction with a view to
make effectual the legislative intent in their enactment. The
object of this statute is apparent. It requires the state courts
and authorities to make no order, and entertain no proceeding,
which shall interfere with the full examination and final judgment
in a habeas corpus proceeding in the Federal courts (Re Shibuya
Jugiro Shibuya Jugiro v. Brush 140 U. S. 291, 35 L. ed. 510, 11
Sup. Ct. Rep. 770), and in no wise to interfere with the judgment
if it shall result in a restoration of the petitioner's freedom
when wrongfully imprisoned or restrained. The proceedings annulled
are 'against the person so imprisoned,' etc. The statute aims to
entirely prevent action which shall interfere with the perfect
freedom of the Federal courts to inquire into the case and make
such orders and render such judgment as they shall see fit.
The reprieve granted has had the effect doubtless intended by the
chief executive of the state, to allow the cause to be heard upon
appeal in this court. To denominate such an order a proceeding
against the prisoner would do violence to the terms of the statute
and defeat, not carry out, its purpose.
We are
unable to find that the appellant has sustained any violation of
rights secured by the Federal Constitution by the proceedings of
the executive or judicial departments of the state of Vermont. The
final order is affirmed, mandate to issue at once.
Death by hanging. After spending two years in a Vermont prison,
Mrs Mary Mabel Rogers (1883-1905) is hanged for killing her
husband, Marcus Rogers, in 1902 -- she takes 14 minutes to die.
She was the last woman to be legally executed in Vermont.