The Fatal Defect
The story of the two unknown men who told Stonewall J.
Durham, Gaston county lawyer, that Fogleman, electrocuted for murder last
Friday, was innocent, should not be taken seriously in the absence of further
information. While this information came to Mr. Durham but a few moments before
the execution of Fogleman, he properly conveyed it to the governor’s office.
The men who assured Mr. Durham that Fogleman was innocent were tramps and
stopped at the Durham home to beg. They went their way before Mr. Durham was
aware that the execution had not taken place. The governor considered the information
too vague to delay the execution. After several hearings the executive was
satisfied of Fogleman’s guilt and he refused to order a stay on stories that
could not be verified.
There was an element of doubt as to Fogleman’s guilt but it
failed to convince the courts. The doubt, in the final analysis, has its
foundation in the man’s vehement and persistent denial of guilt, repeated to
the moment of his death. But his claim that he was not present at the time of
the murder and knew nothing about it was tremendously weakened by the fact that
he offered no evidence at his trial, and until a few days before his death made
no statements of his whereabouts at the time of the murder. Then he said that
he was in Virginia “running whiskey.” It is reasonable that if Fogleman was in
Virginia or anywhere else except at the filling station in Rockingham county
when the killing occurred, that he could have produced some evidence of the
fact. His lawyers, with all their zeal in his behalf, produced no evidence for their
client. They were content with the declaration of his innocence and the changed
statement of the wife of the murdered man, who at first said she didn’t know
who killed her husband and afterward identified a photograph of Fogleman as the
man who fired the shot and then positively identified the man when he was
arrested. It doesn’t answer to say that Fogleman’s associates, being in the
liquor business with him, would have become involved for that if they had
appeared as witnesses for him. Possibility of a prison term could not excuse a
default under the circumstances. The failure to produce some evidence of the
whereabouts of Fogleman on the day of the killing was fatally defective to the
alibi.
It is a theory, and a reasonable one, that much weight should
be attached to a statement by one who knows he is about to die, in the belief
that such person who’d not pass out of the world with a lie on his lips. That
is something to be given serious consideration but not accepted as final in the
absence of some corroborating evidence. The evidence is ample that deathbed
statements are not always correct. The mental state is not always dependable at
such times. When one under condemnation of death asserts his innocence he
expects that to save him. Many cases of record show that determined denial has
been followed by confession at the last moment. It is a reasonable assumption
that others, believing while they have breath that the prostration of innocence
will save, do not have the courage to change the story at the last moment.
Under some circumstances persons have been known to utter falsehoods and stick
to them apparently because their mental condition was such they had convinced
themselves they were telling the truth.
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