Crime Library - Closing Robinson, Page 2

        Now you have sat in criminal cases before; very likely you have had a man before you on trial who had stolen five dollars, or something of that kind, and the same rule applies. And you are told that you must not convict him unless you are satisfied beyond a reasonable doubt. It is not different in this case. In the one case you are perhaps dealing with a man who will be subjected to a penalty of a fine, or a brief imprisonment at the most. Here the same rule applies, and you are dealing with a woman whose life is at stake, and nothing else. Now you will see that while the rule of law is the same in the one case as in the other, the magnitude of a mistake about it is not to be lightly considered. So that when you are asked to find these essential facts beyond a reasonable doubt, it is not the doubt of a curmudgeon who sits off in a corner, and says, "I won't talk with anybody, I am an ugly fellow, I will make myself disagreeable in the jury room." That is not it. That is not a reasonable doubt, no matter which side he is on. He is not fit for service in the jury room. But it is the doubt of such men as I take you to be, with your home influences, with your church belongings, with your business associations, with your social relations, with all that binds you up to each of us. It is the reasonable doubt of a reasonable man, confronted with the greatest crisis he has ever met in the world. Yes, the greatest crisis: because, though I doubt not some of you have worn the blue and faced the cannon shot, though you may have heard and felt the thunders of war, and you may have seen blood flow in streams, yet that is one thing: this---to sit here and to have in charge this young woman and to say upon your oaths you are satisfied that she is guilty or not guilty, is a duty to which very likely none of you have ever been called and which probably you will never be asked to perform again: you will go to your graves thinking of how you performed this task, and it ought not to be that you can have any compunctions that you made a mistake which nobody could retrieve.
         Then again under the laws of this state the defendant in a criminal case is permitted to testify on the stand if she desires to, but if she does not desire to, she can refrain from testifying, and then the statute says specifically and directly, no inference shall be drawn against her from the fact that she has not testified. And so the learned District Attorney in his closing argument will not by the slightest suggestion or insinuation insult this Court and this Jury by intimating that the defendant ought to have testified. That law was born out of two considerations. Formerly the defendant could not testify. Later it seemed to be wise to give a defendant an opportunity to testify, but it says at once, although he does not come to the stand, you shall not take that against him in any way. And again too, as if in the charity of human nature our law givers have felt that it is too great a strain oftentimes to put upon a defendant to place him in such a position that he must either go upon the stand or have that argument made against him, that he ought to have done it, the law which I have cited to you,--- not in its exact terms but in its essential features and expression,---was framed in the way I have stated. And I dismiss that again. The Court will tell you in emphatic and clear language, and it will look you in the eye and touching your sense of justice say to you, Gentlemen, you must not consider that, and you will not as you go to yonder room under your oath, depart from that, because if you do, what is the use of having scales for justice to hold or Courts for the apparent administration of it either?
         Now I said you must leave out rumors, reports, statements, which you have heard before the trial commenced. That is true. I repeat it: But more, you must leave out of your minds now, absolutely, every single thing that the learned gentleman who opened this case, Mr. Moody, said that he was going to prove, unless he has actually proved it. Now I would not like to say that about him in private affairs. I would not be pleased to intimate to you that he would say anything that he was not going to do, because he is the soul of honor. But he speaks for the Commonwealth, that is all, and the Commonwealth tells him: You must not say anything but what you are going to do, and you must tell them that and that only. And I shall expect the learned District Attorney to withdraw the things that Brother Moody said he was going to prove, because he has not proved them. The Court room ought not to echo still that utterance of the gentleman who opened this case because they tend to create a prejudice against the defendant. Now let me tell you about that so that you will understand it: Mr. Moody said that the Government was going to claim and prove that this defendant was preparing a dangerous weapon on August 3rd, the day before the murders. You heard him say that. I did. He said it. They have not proved it, have they? Was there a thing about it in the evidence? You have heard some discussion that we have had at the bar because, in order that there should be no prejudice, you have been asked to step aside, and many of those things which have been offered in good faith have not been proved because the Court has said they are not proper to be proved in this case. They have nothing to do with it. They will only mislead the Jury, and the Jury shall not hear them in this case. Whenever another case arises, if these things are pertinent and proper, they shall be heard, but not now.
         Now the Commonwealth came with the idea of putting these things before you, I say with good intention, but the Court says no, though your intention is good, it is not proper, and we will not complicate this thing. It will create a bias against the prisoner which may divert the course of justice and that shall not be introduced here, it has no right here, though you mean to be right. Now there is no proof at all, gentlemen, about any dangerous weapon having been prepared on the 3rd of August. And to make it more specific, Mr. Moody said in his opening that they would prove that this young woman went out to buy a poison on August 3rd. You have not heard any such evidence; it is not proved, the Court did not allow it to be proved and it is not in the case. Now you will not go to the jury-room with the thought if it had been allowed, you would have considered that it was proved. But it was not allowed, no such evidence came before you, and I shall expect the District Attorney, man fashion, to get up and say so, and I think you will, and I shall be disappointed in him if he does not. He will tell you that upon that subject and that the case is not touched at all. Then he said that they were going to show you that the defendant had contradicted herself under oath about these occurrences. Well, there is another question which went to the Court and the Court said: That is not proper in this case. You cannot show that. And so there is not anything of the kind. Now you are not going to sit back there and say, "Well, I rather think Mr. Knowlton and Mr. Moody would not have offered it unless there is something behind it." That is not the way to try cases. That is not the way you hold this defendant in charge. You might just as well have got your verdict before you started and said guilty because she is here. You might as well say, we don't want to hear any evidence. You do not want to say that you do not care whether you hang her right or wrong,---give us somebody! Now the Court sits here to guard you and all of us against any such mistake. That will not do. The Court says: Here gentlemen, decide this case on the evidence given right here from the witness stand, and on nothing else. Why, it is not impossible that any one of twenty or even twelve men might not be brought up under a like charge. But when you stand there in the box ready to answer, and somebody says to you, "Oh, don't mind what they put in, about particular evidence, whether it is competent or incompetent," you say No, I want my rights. I am here under the protection of the law, and I call upon those twelve men, decent men under their oaths to stand by me and see that I am not wronged. So you will leave those things out, Gentlemen. No poison in this case, no prussic acid, no preparation of a weapon by this woman, no statement made by her under oath in this trial or anywhere that you know anything about or have any right to consider. I do not care what you have read.
         Now we shall agree in the consideration of this case very largely upon many things. My position in this case in speaking for the defendant is not to misrepresent or distort facts, but to take the proofs as they are, put them against each other and find out what is right. This defendant wants nothing but justice and she desires to have it in the proper administration of the law. Things that are not in dispute, I hope I shall not contest. I hope I shall array before you the facts all together in an intelligent and a clear way and then ask you to give me your judgment on them by and by, and I just as sincerely trust that I will not even by a single letter step over the line of the proof or deal unjustly even with the Commonwealth that is really so dear to us all. Now let us see if we cannot get at these things in a fair way without prejudice.
         Mr. Andrew J. Borden left his house and went down street that morning, Thursday, August 4th, about half past nine o'clock, so that he arrived at the Savings Bank, upon the evidence, about 9.30. He went into several places along the street, not material now to consider, walked back along South Main Street towards his house, stopped at a store of his that was being repaired, talked with Mr. Shortsleeves and Mr. Mather, and after picking up an old lock which he wrapped up in a paper and took home, he started to go to his house. You recollect something was said, that it is not now material to consider in this connection, but he walked along up towards his house, arriving there, the defendant thinks, about quarter before eleven o'clock---about 10.45. It did not vary, probably, more than two or possibly three minutes from that time. It must have been as much as that, because you recollect how Mr. Mather put it,---his looking at the clock, and the time that Mr. Borden lingered at the store, went up stairs, came down, went out into the middle of the street, looked at his block, went back and talked with Mather and Shortsleeves a minute or two, and then went on. It was 10.40---20 minutes of eleven---as he came up to the store. Now he probably consumed two or three or four minutes in doing those things that they have spoken of, and so you may well, perhaps, infer that he reached his house about 10.45. Now the alarm of the murders reached the police station about 11.15, and within that time Mr. Borden was murdered. We have learned of several things that he did---that he came into the house, sat down, went upstairs to his room, laid down his little package, and so on,---was occupied with a few things that would consume a short space of time; so that we can say that he was murdered somewhere within a given fifteen or twenty minutes of time, which fairly, perhaps, may be between five minutes of eleven and ten minutes past eleven. I presume that the Commonwealth will not differ with me about this. At any rate, if there is a more clear statement of it to be made, the defendant has no objection if it lies within the proofs. That is the way I propose to argue, to take that as a fact. Mrs. Borden had died earlier; on the testimony of the physicians, inspecting the character of the wounds, the condition of the blood, the state of the stomachs and the intestines, they put it from an hour to an hour and a half earlier than he died. That is probably correct: at any rate, no issue is made about it; and so, if I may be permitted to state it, she would seem to have died between 9.45 o'clock and 10.15, somewhere within that half hour, taking all the evidence into account. That answers the demands of the physicians, and seems to me, if I may be permitted to say it, to accord with the facts.
         Now you have those tragedies within that short space of time, in that place, and it is for us to see whether the defendant is connected with them---whether the defendant alone or the defendant with any confederate, if there is any proof about it, did the deed. I am at a loss to know where there is any evidence about any accomplice or anybody else connected with it at all, and so it is only my inquiry to find out if there is any proof as to this defendant. Of course I need only to suggest to you that until there is some sort of evidence that connects somebody with it, it is not well to assume that she must have had somebody because you cannot think of anything else. That is not the way to try this case.
         Now it will be my endeavor in discussing these questions to be very guarded about giving you my own opinion of the evidence. I have no right to put in whatever personal weight I may have in my construction of the evidence. That is bad practice, and I should expect if I get over the line, for the learned Court to call me to order, because I trust I know my place. I have no right to tell you that I believe so and so about this case. I may believe all I want to, but my duty is to keep it inside of me, that is all. And so the District Attorney will do the same: carrying his great weight and his strength, his connections every way into this case he is not so to demean himself as to tell you that he believes so and so. You do not want our beliefs: we want yours, and your judgment.
         Now there sits the defendant. In yonder city were the crimes. Those crimes were of the foulest and darkest kind. She becomes here under this presumption of innocence. It must overcome absolutely, and you must bind her up to the acts before you can say she is guilty. What is the cord that holds her to those terrible criminal acts? Let us see where it is to be found. It is not in the charge that is read in the indictment: it is not in the procedure of the Court, but it must be in that chain of circumstances or in that line of direct proof that shall show you that she is tied up to this thing, that she is the one, and that it is not reasonable that anybody else did it or could have done it: that there is no reasonable way of accounting for the things that are proved except that she did it. That is the kind of bond that you must frame in order to hold her, or to permit you even to think of holding her.
         If a person commits a murder like this, and we know it, we have no occasion to inquire for what reason he did it. If he did it, then it does not make any difference whether he had any motive or not. He might have done it for pure deviltry, without a motive. He may have done it in insanity, and then the law comes in in another way to intervene in his behalf. But if it is proved---proved, I say, not guessed, but proved that he did it, it is not of the slightest importance whether he had a motive or not. If he did it, that is all there is about it. Now why is the Commonwealth bound in this case to attempt to show a motive for doing it? Merely for this, gentlemen: because they say, Here are the crimes---there are the crimes there, there sits the defendant---you see her over there. Now in order to hold her responsible for the crimes, we have got to bind her up to the crimes. We have no direct evidence that puts her there; we have some circumstances that look as if she might get there; and so in order to bring her to it, we must show a reason why she would do it,---what moved her to do it; and that is the motive. That is to say, the motive in this case is only to explain the evidence. You get my idea, I think. It is only to tell you how you can explain her acts or her words. If you can explain them in a reasonable and honorable way, then she is entitled to that. But if they cannot be explained except that you find a criminal thought running through them, then that motive operates against her, not to make her commit the crime, but to show you that what is said about it is a reasonable construction---that she was led to do it.
         That is it, if I understand the case properly, and I state it just as I believe it to be---the Court will correct me if I am wrong---and I believe I state it about as the Commonwealth attorney's would state it; intentionally I do; and so that motive is only to be inquired into to help you out about the circumstances, and I think I can explain it to you---and I am guarding myself against saying anything I ought not to.
         Suppose the crime were committed in another place, and a man was suspected of it, and he proved that he were in the State of Georgia at the time, at the very instant, and everybody knew it. Well now, you could not bind him from doing the crime anyway, no matter if he stood down there and swore profanely that if he could only get home he would have killed that man. That would not be anything, because the circumstances do not come up to it, they are not connected. So you do not want his motive to explain his acts. He hasn't any acts to explain.
         Now the Government says that Miss Lizzie A. Borden has some acts to explain, therefore they will find out whether there is anything in her motives that will put a color on it. I think you see that. And they are inseparable from the conditions.
         Now I say that the argument will be, perhaps, only this: that you are to look at the motive to see what effect you shall give to the evidence. It will not do, to say that no adequate motive is shown and none is necessary. That is true when the crime is proved. That is true when you have the facts. But that is not true when you are trying to show the motive in order to explain the facts.
         Now there is absolutely (and I think the Commonwealth will say it) no direct evidence against Miss Borden, the defendant. You know what I mean. Nobody saw or heard anything or experienced anything that connects her with the tragedies. No weapon whatever, and no knowledge of the use of one, as to her, has been shown. You know if you had found her with some weapon of that kind in her control, or in her room, or with her belongings, that would be direct evidence. But there is nothing of that kind. It is not claimed. It is not shown that she ever used an implement of the character that must have produced these murders. It is not shown that she ever touched one or knew of one or bought one or had one. In fact, the evidence is that she didn't know where the ordinary things in the house of that kind were.
         And the murders did not tell any tales on her, either. There was no blood on her, and blood speaks out, although it is voiceless. It speaks out against the criminal. Not, a spot from her hair to her feet, on dress or person anywhere. Think of it! Think of it for an instant!
         Yes, there was one drop of blood on the white skirt, as big as the head of the smallest pin, says Professor Wood; less than a sixteenth of an inch in diameter; and that is every particle of blood that was found upon her clothing. And that was not where you would expect it to be; not in the front of the skirt, that must, if she had had it on and had done these foul deeds, have first come in contact, but around back, down toward the bottom, near the placket, as I believe the women call it, out of the way.
         I do not know but the Government are going to say that she turned her skirt around hind side before, before she commenced, in order to get at it in a practical way. I don't know what they are going to say yet. I shall have occasion to speak of that by and by. But Prof. Wood does not claim, and Dr. Dolan does not claim now---he did---he does not claim now---I don't know as there is a Fall River policeman from the top down that claims now that that little fly speck, as it were, of blood, tells any tale here. I forebear to allude to what is proved in this case, Miss Borden's illness, monthly illness, at that time, and to tell you or remind you that Prof. Wood said he would not undertake to say that that blood was not the menstrual blood. You know the facts. I need not give them in detail. You know enough in your own households; you know all about it. You are men, and human. You have your feelings about it. I am not going to drag them up, but you must not lose sight of these things.
         Then there was some talk about a roll of burned paper in the stove, where Mr. Philip Harrington, I believe, was the officer. He took off the cover and saw what he said looked like the embers of a rolled up piece of paper, burned. That is all. And there were some sort of dark insinuations here, floating around, they didn't clothe themselves in words---but there was something in the manner that meanly intimated that Dr. Bowen was doing something about it. Dr. Bowen! I suppose they don't make any allegation that he committed these murders, or helped, or helped to cover up, or assisted in doing anything about it. When the evidence is heard it seems that Mr. Philip Harrington says that Dr. Bowen was throwing in some pieces of an old letter. The letter had nothing to do with these transactions, something about his own family matters, of no account. And Mr. Harrington---I think I am right in the name of the officer---when they were thrown in, saw some little piece of paper, rolled up paper, about an inch in diameter, that had been rolled up and was lying there, the embers of it, and there was a small, low fire.
         Well, we thought the handle was in there. We thought that was the plan, that the Government possessed itself with the idea that that handle was rolled up by the defendant in a piece of paper and put down in there to burn, and it had all burned up except the envelope of paper. Did you ever see such a funny fire in the world? What a funny fire that was! A hardwood stick inside the newspaper, and the hard wood stick would go out beyond recall, and the newspaper that lives forever would stay there! What a funny idea! What a theory that is!
         And we wrestled with that proposition here, on the part of the defence, through weary nights, troubled about it, until Fleet and Mullaly got here together, and then we were relieved from our doubt. For the handle is in it and it is out of it. Fleet didn't see it and Mullaly did see it. Fleet didn't take it out of the box and Mullaly saw him do it. And it is in the box now, and they run over to Fall River to get it; or they wanted to, and can't get into our house, and explain about it. So we rather think that that handle is still flying in the air, a poor orphan handle without a hatchet, flying around somewhere. For heaven's sake, get the 125 policemen of Fall River, and chase it, till they can drive it in somewhere and hitch it up to its family belongings.
         Then, too, upon the best testimony of the experts, and probably in your own common sense, whoever committed that murder of Mrs. Borden stood astride her body. She was a large, stout, fleshy woman, weighing 200 pounds. Conceive of the situation. You looked at the place. You saw the little gap between the bureau and the bed, stated to be about 30 to 34 inches; and you are to conceive of the murderer standing over that body in this way. Here she lies, there; and the murderer standing over her and literally chopping her head to pieces. I shall have more to say about that by and by, but I call it to your attention now. And they all agree that Mr. Borden was butchered by somebody who stood at the head of the sofa, and between that and the parlor door. You know how that is placed, and we make no question about it. That looks reasonable, we will say, and so we take the things as they are.
         Now what reason is there for saying that this defendant is guilty? The Commonwealth asks you to come up here and hear all this evidence and point out whether you think she is guilty or not. If you do not think she is, why, you say, "Not guilty," and the Commonwealth is satisfied, the district attorney goes away, having done his whole duty, satisfied to let it alone. He doesn't find any fault about it, he is relieved of it. It is a great relief to him to get rid of the case. He doesn't enjoy it. He says Come up and hear all we have got against her, and let the jury say she is not guilty, and that will stop this matter, or, if you come up and hear it, and you say she is guilty, then that relieves me about it. I put this responsibility on you. And the Court says, I put this woman into your charge. Now you have got it all.
         Now what right have they to say anything about it? Well, I want to run it through (which I have done with some care), and tell you why they claim that she did it.
         In the first place, they say she was in the house in the forenoon. Well, that may look to you like a very wrong place for her to be in. But it is her own home. I suspect you have a kind of an impression that it would be a little better for her than it would be to be out traveling the streets. I don't know where I would want my daughter to be, at home ordinarily, or where it would speak more for her honor and care, and reflect somewhat of credit upon me and her mother, (who is my wife, I want to say), than to say that she was at home, attending to the ordinary vocations of life, as a dutiful member of the household, as belonging there. So I do not think there is any criminal look about that. She was at home.
         She is shown to have been upstairs to her room, the Government says, about ten minutes before ten; and she must have seen, as they claim, the dead body of Mrs. Borden, as she, the defendant, went up and down the stairs.
         Now let us look at that, because than is an important feature in the case; important for the Commonwealth, important for the defendant. You went there and saw the situation. You know how the stairs go up, turning around as you go up, and at the top of the landing you are right there at Miss Lizzie's door. When you stand at the top of the landing you cannot see into the guest chamber, you know. It is as if you stood over there where that officer stands, or a little further. You are not looking into the door at all. It is not like a great many houses where you come up to the top and are looking into both doors at the same time.
         Then it is said that at certain point on the staircase, right on one tread of one stair, if you look in under the bed across the floor of the guest chamber you could see any object that was over between the bed and the bureau. And you were all asked to do that, by traveling up and traveling down---you remember the experience you had---and looking. And therefore they say that, although Miss Lizzie, when she was at her door, as she undertook to pass down, could not see Mrs. Borden over there behind the bed, that if she went downstairs she could have seen Mrs. Borden lying there behind the bed, and therefore that she must have seen her.
         Now if we had marched you up and down the stairs and told you nothing of what we wanted you to look at, there isn't one of you that would have squinted under that bed, on that particular tread of the stairs. You wouldn't have thought of it. But you were going to see if you could see, and you were told to look all you could and see if you could see. So you got ready to see, made up your minds you were going to see if there was anything to see. You have not been home for the last two weeks. But when you get home, and after you get over this, in two or three weeks from now, and I meet you, I want you to tell me where you looked when you came downstairs that morning, and whether you looked to see what you could see at any particular stair. How was it the last day you were at home? Do you remember anything about it? What time in the morning did you come down? At what stair did you look to see what you could see? Right in your own house, where nothing had happened.
         Now we are talking of a time with regard to Miss Lizzie when nothing had happened, when everything was all right. It was, at that time, to her. Now people do not go searching and squinting and playing the detective and all that, to begin with. I do not. If I did I should think I was a rascal some way or other, and that something was happening to me. If she did that thing, if she was looking to see if anybody could see it, if she had walked down and looked under and had not said anything about it---there goes the murderess, see her! She didn't see it, and she might. Therefore she is the criminal. She did see it because she could, and therefore she is the criminal.
         No, no. You and I, until we get to be too old, run up and down stairs just as we have a mind to. They are our stairs. We do not ask anybody's pardon or qualify our act a particle. Then there is not the slightest evidence that that door was open at that time. Remember that---that that door was open at that time. There is evidence that it was open later, but no evidence that it was open before Mr. Borden came in. I am right about that, and that is very important.
         So that if, when Miss Lizzie went down stairs and went up stairs, as she undoubtedly did during that forenoon, to her room, if she went up and down stairs and the door was closed or nearly closed, or stood ajar, then of course she could not see. She had no occasion to go into that spare room, wouldn't go in there. As you know about the habits of the family in which he lived, the spare room was closed up practically. Mrs. Borden had gone there to make the bed, and after she had left it all right undoubtedly she would push to the door. The door was pushed to, at any rate. There is no evidence it was wide open.
         Now the Government starts out with the idea that that door was standing right wide open, and therefore that she could see; and I have told you how you can reason it very plainly out in your own common experiences. You wouldn't look. If she had been lying right front of the bed, outside, why, I should have said it would be very improbable that a passer up and down the stairs would not have seen her, and yet that is not impossible. You walk along the streets sometimes, possibly---I do not want to see anything wrong about you---and you meet your own wife and don't see her, go right along. They used to tell a story about Prof. Pierce over at Cambridge who didn't know his own wife when he met her, and he had been spoken to so much about it that finally he thought, to make amends, he would speak to the first thing he met, and that was a cow. He said, "Good morning." He didn't make any more mistakes. People are not looking for everything at every minute, especially if they are innocent. It is the guilty man that is always looking around to see when there is somebody round going to catch him, lay a hand on him.
         Now do not ask her to do things that nobody else does. Besides, you remember the testimony from Dr. Bowen and Mr. Manning and some others---it is not necessary to state them---that the upper hall was dark when they went up there, and that the guest chamber was dark.
         You remember that in that guest chamber there are these tight board shutters, not open blinds like this court room, but tight board shutters that shut up. And you know the New England housewife does not like to have her carpet fade, and the more they live in the old style the more careful they are. I remember with some reflections about my old mother, how she looked after the carpets and the boys, that they didn't get the light in. The boys wanted to live out in the sunlight; she didn't want her carpets there. And so the natural thing in that room in the Borden house was to keep the shutters shut, those tight shutters. And the doctor says, they all of them say, that when they went in it was dark and they had to open them so they could see something.
         Now you recollect we tried that on you over there. You marched up and down, in the first place, with the shutters all flung open, so that that room was as light as this, or more so. Then we shut the shutters and asked you to go up. You know the instance. You can see across the street, but it is always difficult to look down into a well and see what is at the bottom.
         Now they say further, as a reason that she is guilty, or they claim it, (is) that Mr. Fleet tells you that Lizzie said she saw Mrs. Borden about nine o'clock, when she, meaning Mrs. Borden, was making the bed.
         Now, taking that as true---there is no contradiction of it. I am bound to say, however, in fairness to the defendant, that it is possible that Mr. Fleet was mistaken. But it is of no great account, as the defence looks at this case. Admit that, then, for the time being, for this discussion, to be true---I do not say it is---but just assume it. See what it comes to then. That is, Miss Lizzie said to Mr. Fleet---assume that that is a fact---that as she went down stairs or went upstairs she saw Mrs. Borden making the bed in the spare room.
         Well, what of it? What of it? True, you say. Your daughter goes up stairs this morning to her room and she sees her mother in the spare room making the bed. Well, what of it? Well, they say she was upstairs when Mrs. Borden was making the bed. That is true. But she was upstairs in her own house, in her own room, at a time when the orderly woman of the house goes to look after the morning work. It does not appear one way or the other whether they were in conversation or not, and it does not appear whether she went up and down stairs that morning two or three or more times or not. Why, you would naturally infer, I should say, that it would be the commonest thing in the world for this young woman to pass up and down stairs to her room in the ordinary way of living. Why not? Do you suppose that your wives and daughters can tell the number of times they went up and down stairs six months ago on a given day? Not at all, or even the day before, unless they were very careful about something.
         Now there is no doubt at all in my mind, that she did go up and down stairs. Mrs. Borden was making the bed. That was before she had been killed, of course. And while she was there, pursuing that work, nothing whatever except the passing up and down is what is claimed here. Now grant it all. Grant that she did go up and down stairs that morning about nine o'clock. Mrs. Borden was alive. It isn't claimed that she was killed then, at that time. But the Commonwealth undertakes to tell you without any evidence, gentlemen, without any evidence, that she stayed up there that forenoon, practically, until her father came in. I say there is no evidence of it, and I will show you that later. That she went up and down I do not care to question. I should expect it. That she stayed up, no; or that she was there, having stayed all the time until her father came, no.
         Now she told about the note, they say, and that is evidence of guilt. She told about Mrs. Borden having a note. Now there is considerable interest in that question and I ask your attention to it. You know that after the tragedies, when Miss Lizzie was asked about where Mrs. Borden was, she told Bridget, so Bridget tells us, that Mrs. Borden had a note and had gone out.
         "I said, 'Who is sick?' 'I don't know, she had a note this morning, it must be in town.' "
         Now that is what Bridget says. Then Mrs. Churchill comes, and she says, "I said," meaning herself, "I said, 'Where is your mother?' She said, 'I don't know, she has got a note to see someone who is sick.' "
         Next question: Listen to it.
         "What did Bridget tell you about Mrs. Borden having a note?" Answer: "She said Mrs. Borden had a note to go and see someone that was sick, and she was dusting the sitting room, and she hurried off, and said she didn't tell me where she was going, she generally does."
         Now that is what Bridget told Mrs. Churchill. You get the idea. Both Bridget and Lizzie had learned from Mrs. Borden that she had had a note. Mrs. Borden had told Lizzie. Mrs. Borden had told Bridget. She had given Bridget the work to do, washing the windows. She says to her:
         "I have got a note to go out and see someone that was sick." That was when she was dusting in the sitting room. That is when Bridget says it was to Mrs. Churchill. That was at the first when there was no mistake about it. And Bridget says, "She didn't tell me, she hurried off." Now Lizzie didn't say anything about her hurrying off; nobody says that. Bridget told it to Mrs. Churchill. She hurried off, and she, Mrs. Borden, didn't tell me, Bridget, where she was going; she generally does.
         Now have you the slightest doubt about that? Mrs. Churchill you saw. She was called upon three times to tell that, and she told it very clearly, and I think convincingly. Now notice the questioning that followed:
         "That was what Bridget told you?" "Yes sir."

         "That was not what Lizzie told you?" "No sir."

         "Bridget said Mrs. Borden had a note?" "Yes."

         "And she hurried off?" "Yes sir."

         "She was dusting the sitting room?" "Yes sir."

         "And Bridget says, 'She didn't tell me where she was going; she generally does'?" "Bridget says-----"

         Bridget said that?" "Yes sir."

         "That was not what Lizzie said?" "No sir."
         "Now you have got that right, haven't you, no doubt about that?"
         "Bridget said that Mrs. Borden had a note to go and see someone who was sick. She was dusting in the sitting room, she hurried off, she didn't tell me where she was going; she generally does."
         Now my friend who opened this case for the Commonwealth said that Lizzie told a lie about that note. He used that word.
         I submit that that will hardly stand upon his evidence. If he had heard the evidence fully through he would not have uttered that expression, because here you have it proved that Bridget gave the clearest and fullest statement about this matter, and you will probably infer from this that Lizzie learned from Bridget that Mrs. Borden had gone out, and she had a note to go, because Bridget tells it with exact detail, and holds it down to herself. That is not criminal on the part of Bridget at all. I am only calling your attention to the directness of the testimony at the time right on the very moment.
         Now, there is not anything in the testimony that really qualifies that at all. Miss Russell says that she heard the talk about the note, but she did not know who told it. Now, notice that. She got there, and Bridget was there, Lizzie there, Mrs. Churchill there, and Miss Russell says she heard the talk about the note, but she does not know who told it, so that you see you are uncertain there. Then Miss Russell tells about the conversation with Dr. Bowen and with Lizzie about the note. Listen to it: "'Lizzie, do you know anything about the note your mother had?' "And she hesitated and said, well, no, she didn't. He said, (Dr. Bowen) 'I had looked in the wastebasket,' and I think I said (that is, Miss Russell)---no, he said, 'Have you looked in her pocket?' And I think I said, 'Well, then she must have put it in the fire.' And Lizzie said, 'Yes, she must have put it in the fire.' "
         You see that the suggestion of putting it in the fire came from Miss Russell, not from Lizzie. Dr. Bowen had been searching the wastebasket. He had looked around to see if he could find the note. He did not succeed; he calls their attention to it in the way I have stated, and then Miss Russell suggests that probably she burned it up, and they all assent to it, and very likely that was true. It was not of any account. The woman had got the note and tossed it away, very likely threw it in the kitchen stove and burned it, but we do not know anything about it, but they all seemed satisfied right there on the spot. Then he said that he had searched for it---Dr. Bowen,---it is Miss Russell telling it, and at any rate she says what was said about that was said in the presence of Lizzie, and "The same person said she must have burned it? A. I think I answered that question," that is, Miss Russell.
         Well now, you get nothing from the officers, merely that Mr. Fleet learned from Miss Lizzie that Mrs. Borden had a note and had gone out. Officer Wilson says the same thing, that she said she had received a note, and that she thought she had gone out. That was after the murder and she said that Mrs. Borden had a note and she thought she had gone out, that is, during the forenoon she thought she had gone out. Dr. Dolan says the same thing, so that when you come to consider it you see that the evidence in regard to the note comes from what she told at the very first instant by Bridget and Lizzie, and if you believe, and the facts here seem to warrant that, if you believe that Mrs. Borden told both Lizzie and Bridget about the note, it all looks plain. And why should it not? They were all in the family there together, and she receives a note to go out, and she did have the note, or else they both tell something that Mrs. Borden told that was not true, and we are not going to believe that. Taking the evidence that comes from the living and that drops from the lips of the dead, you must find that Mrs. Borden did have the note, and that she told the two women about it, and hurried off, as they thought, and did not tell Bridget or either one of them where she was going. It was not of any great account probably. She got a note to go out to see a woman, and did go out as far as learn to the contrary. It was a natural and ordinary thing, and the note was tossed away and thrown in the fire. It was not a bank note to be kept, but a little scrap of paper probably indicating what was wanted.
         Now, a person may say, Where is the note?" Well, we would be very glad to see it, very glad. They looked after it and they could not find it. The construction of Miss Russell was that she had burned it up. Very likely that was it. They say that nobody has come forward to say that she sent it. That is true. You will find men now living perhaps in this county who do not know this trial is going on, do not know anything about it, do not pay much attention to it; they are about their own business; do not consider it of any consequence. And after a lawsuit is over, it very often happens in every courtroom that some one will come forward and say "Well, if I had really known that that question was in dispute, I could have told you all about it." Bless his dear heart, why didn't he come out of the cellar so we could see him? Well, sometimes people don't want to have anything to do with it; they don't want to get into the Court room, even if a life is in danger---women especially; they have a dread of all sorts of things. The note may have been a part of the scheme in regard to Mrs. Borden. It may have got there through foul means and with a criminal purpose. We don't know anything about it. But that a note came there on this evidence you cannot question. That Lizzie lied about it is a wrongful aspersion, born out of ignorance of the facts as they were to be developed in this case, not with a purpose to wrong her, but misstating the evidence as we all do when we do not know quite what is coming--- really anticipating something that is not proven. So I say that it is not true that Lizzie told a lie about it. If she did, Bridget did the same, and I would not say that for a minute. There is nothing to connect Bridget with this transaction. See how quickly you would suspect anybody because you get them under pressure. Now look at it. Suppose that Bridget were suspected of this crime and Mrs. Churchill came forward and told that Bridget said these very words that I read,---how quick some people would be to say,---"Oh, Bridget did it; she did it because she told a lie about that note." Do you see it? It is plain, it is a demonstration. Now I dismiss it with the remark that nobody thinks that Bridget Sullivan had anything to do with this crime at all. Lizzie does not think so, because she has said so openly.
Now she told about her visit out to the barn, they say. She told the officers that she went out to the barn; went out in the yard,---some twenty or thirty minutes. Now remember that we get this information in regard to the time from the police officers. The others tell us that she said she went to the yard and the barn. It takes Assistant Marshal Fleet here to tell us about the thirty minutes---thirty minutes. You see him. You see the set of that mustache and the firmness of those lips and the distinction that he wrought here in the courtroom telling that story. And there he was, up in this young woman's room in the afternoon, attended with some other officers, plying her with all sorts of questions in a pretty direct and peremptory way, saying to her, "You said thirty minutes, and now you say twenty minutes; which way will you have it?" Is that the way for an officer of the law to deal with a woman in her own house? What would you do with a man---I don't care if he had blue on him---that got into your house and was talking to your wife or your daughter in that way? You would do just what Marshal Hilliard did with Caldwell---get him out. That is the way to do it. Recollect that this was after the tragedies: this was when the terrible pall was over that house and the neighborhood, and an officer should be pretty careful. Recollect that the air was full of policemen at that time: they were running in all over that house, putting her to every possible strain, asking her in her loneliness, her absence from any friend, her sister gone---following her up in this way, insinuating in that way and talking to her as if she were a liar. Well, I can tell the truth and behave pretty well if a man treats me decently, but I want to get him out if he talks to me as a liar to begin with.
         Now she told about her visit to the barn, and they undertake to tell you that she did not go out to the barn. Now let us see about it. They say that is another lie. We have got so we know what the small words in the English language mean in the idea of the Commonwealth. We can get rid of three letters pretty quick, but you cannot dispose of the facts. Now let's see about that. Did she go to the yard or the barn? She told them she did, and they bring it in here and they say she could not have gone to the yard or the barn. Now let us see whether she did or not. If she did go out to the yard or the barn, then she was there, upon her own showing, at the time when the murder of her father was committed. You see that. That will end the case if you see it. Now Bridget Sullivan said, "I went right over to Dr. Bowen's, and when I came back I asked her 'Miss Lizzie, where was you?' I says, 'Didn't I leave the screen door hooked?' She says, 'I was out in the back yard and heard a groan and came in, and the screen door was wide open.' "
         Now that is what Lizzie told Bridget right off. I am going to talk about going to the barn, and by and by talk about the groan---take them separately. Now she says that she went out into the yard, you understand. What did they have in the yard? Pear trees. That is the evidence, and the evidence that in the partially digested contents of the stomachs pear skins were found. Bridget says Mr. Borden had been out and had brought in a basket of pears, and they had those in abundance. You saw the trees: the neighbors saw the trees; Patrick McGowan saw them and got up on one of them and helped himself. We know that: there is no lie about that. This was an August morning, and it appeared that before this time Lizzie had been ironing---had been around the kitchen trying to iron some handkerchiefs. No doubt about that. She had been in and out about her work. She tells us she had been out in the yard. That was true, we will say, upon that statement.
         Now Dr. Bowen said, "Where have you been?" Her reply was, "In the barn, looking for some irons," or "iron." Now both can be reasonably true, can't they?
         She could not get into the barn unless she went into the yard, naturally, and that she should stop there by the trees five or ten minutes is perfectly consistent. Does that look unreasonable? Do you not see families out in the yard, strolling about in your own yards, stopping under the trees, sitting under the trees, especially when they have a right to have a little leisure? Mrs. Churchill says, "I stepped inside the screen door and she was sitting on the second stair, at the right of the door. I put my right hand on her arm and said, 'Oh, Lizzie.' I then said 'Where is your father?' She said, 'In the sitting room.' And I said 'Where were you when it happened?' And said she, 'I went to the barn to get a piece of iron.' " Miss Russell says, "She told us about going to the barn. She said she went to the barn. She told us when she came in she saw her father, and he was killed."
         "Q. Did she say anything about what she went to the barn for?
         A. Not until I asked her."
         "Q. State what you asked her and what she replied?
         A. I said, 'What did you go to the barn for, Lizzie?' And she said, 'I went to get a piece of tin or iron to fix my screen.'
         "Q. Did she refer to any screen in particular, or simply 'my screen'?
         A. My screen."
         Now Mr. Fleet told us that she went into the dining room, she said; that her father lay down, and that she went out in the barn; and he brings in the half hour---he is the only one that does. And then he goes there and talks to her about it, as to whether she means a half hour or twenty minutes. Now just listen to this man. Recollect when this was---Thursday afternoon. Recollect he is the same man that said Dr. Bowen was holding the door on him---holding the fort. Think of it. And Mrs. Holmes and Dr. Bowen and Miss Russell tell you, and Wilson, the officer who went with him, comes right up here and says there was not the slightest resistance; that he knocked at the door, and just as soon as Dr. Bowen could ask them if they were ready to have the officers come in---and I am sure that was perfectly proper---they were admitted without any trouble. Now this man Fleet was troubled, and he was a-scent for a job. He was ferreting out a crime. He had a theory. He was a detective. And so he says, "You said this morning you were up in the barn for half an hour. Will you say that now?" I think the man was impertinent---I beg your pardon, the defendant thinks he was; thinks he was impertinent. She said, "I do not say half an hour; I say twenty minutes to half an hour." "Well, we will call it twenty minutes, then." Much obliged to him. He was ready to call it twenty minutes, was he? What a favor that was! Now Lizzie has some sense of her own, and she says, "I say from twenty minutes to half an hour, sir." He had not awed her into silence. She still breathed, although he was there. Think about a woman saying something or doing something in the presence of a man who talks that way to her under those circumstances.
         Mr. Harrington states that she said to him that she was there about twenty minutes. He asks her whether she would not have heard the opening or the closing of the door. "Why not?" You were but a short distance, and you would have heard the noise if any was made." But Bridget said she did not hear the screen door shut at all, and she said she would not hear it in her room, and never heard it when it shut unless somebody slammed it or was careless about it. You remember that. Now you see there is no inference to be drawn from the fact that Miss Lizzie did not hear it when she was in the barn, or in the yard, for that matter. And you recollect how the side door stands with reference to the yard: That when a person is out around the corner under the pear trees, even under the first pear tree that stood from the south door to the barn, he cannot see up to that door, because of the jog. So that if she was even out under that pear tree anybody could have passed in or out that side door without her seeing him,---much more if she were in the barn, either up stairs or down stairs. Wilson has told us that she said "twenty minutes to half an hour." He was there with Fleet. Medley says "she said she was up stairs in the barn---I am not positive to the stairs part: she was up in the barn."

         Now take that; is there anything unnatural or improbable in her going to the barn for anything she wanted? She was, you will say, a person who was free to go about and did go about, and went in the natural call of things that she was going to do. You have heard talk about the party at Marion, and you know where it is better than I do, but I suspect from what has been said about it that it (is) somewhere near the water and where fish swim, and it would not be strange if a party of women were going there, they would try to catch something---I mean fish; and when they got there they would want something to catch fish with. Perhaps they do; that is the way we bob around for fish up in the country. We don't have much to do with sea fish, but isn't that common? She said she wanted some lead for sinkers. She also said she wanted something to fix the screen. Perhaps she had both things in her mind. It is perfectly natural. She wanted a piece of tin or iron to fix the screen. If she had set out to be this arch criminal that they claim, she would have had it all set down in her mind so that she would tell it every time just the same, line for line and dot for dot.
         They say a story is true because told all times alike, but those of us that have dealings with witnesses in Court know that witnesses who tell the truth often have slight variations in their stories, and we have learned to suspect the ones that get off their testimony like parrots, as if they had learned it by heart. Honest people are not particular about punctuation and prepositions all the time.
         Now did she go to the barn? She says she did and her statement is entitled to credit as she gave it on the spot, the moment when Bridget was upstairs and might know about it. Did she go to the barn? Well, we find that she did,--- find it by independent, outside witnesses, thanks to somebody who saw her. Possibly this life of hers is saved by the observation of a passer on the street. There comes along a pedlar (sic), an ice-cream man, known to everybody in Fall River. He is not a distinguished lawyer, or a great minister or a successful doctor. He is only an ice-cream pedlar, but he knows what an oath is, and he tells the truth about it, and he says he passed down that street that morning and as he passed right along it was at a time when he says he saw a woman, not Bridget Sullivan whom he knew, coming along, walking slowly around that corner just before she would ascend those side steps. Now there was no other woman alive in that house except Bridget and Lizzie at that time. He knew it was not Bridget by the best of instinct, because he had sold her ice cream and he knew her. He says it was the other woman whom I had never sold ice cream to. Recollect that was Lizzie or some stranger in the yard. You will say undoubtedly it was Lizzie as she came back from the barn. It may be asked why did he look in? I say because any one might do so---they say Lizzie must have looked under the bed; I say Lobinsky (sic) must have looked into the yard. He was an enterprising young man, he was looking for business because he had sold ice cream there before and therefore he noticed the yard. Now is that something he remembers today and comes up here to tell about or anybody has bought him to tell about? Nobody will make that insinuation in regard to the defendant. Was he got to tell it? Let us see. He told it the 8th of August to the police and they had it all in their possession. Now, that is not a yarn made up for the occasion at all, and the only sort of conflict about it is attempted in this way, not to dispute it, but to admit or say that Mr. Lobinsky is mistaken about a half hour of time. Mr. Mullaly is one of the knights of the handle, you know. You know who he is. Mr. Mullaly,---Mr. Mullaly comes with a book and it is thrown down here on the table with a great display to us for us to pick it up and with something written in it. It is not competent evidence and has no business on the table, because it might be lost and carried away, and it should be,---but Mr. Mullaly says that on the 8th of August he had a talk with Mr. Lobinsky and Mr. Lobinsky told him it was half past ten o'clock. Now if Mr. Lobinsky went by that yard at half past ten, he did not see Miss Lizzie go to the barn. Is Mr. Mullaly mistaken, or is he biased, trying to work up the case? He had to stay in the court room until the other fellow was heard, to hold him. We had the twins here; they did not look alike. We kept them here. That is Mr. Mullaly. Now you are going to say, Gentleman, whether you believe Mr. Lobinsky who stands uncontradicted and undisputed, or believe another man who is fully contradicted by a man with him who was his own associate on the police force. Now, Mr. Foreman and gentlemen, the Government knew where Mr. Lobinsky was, and that was at the shop of Mr. Wilkinson. They knew where he was. And they knew too that Lobinsky's horse was kept at Mr. Gardner's stable on Second street corner of Rodman, and they could have found whether Lobinsky had left the stable at eleven o'clock or half past ten. But we have not troubled them to do that. Mr. Gardner who owns the stable has told his own story, and has he not told you that Lobinsky's statement is correct, that he did not leave the stable until after eleven o'clock? He testified that that was because other teams were to be hitched up to go ahead of Lobinsky, and he was late so that he did not get away until eleven or five minutes past eleven o'clock. My friend Knowlton in cross-examining him wanted to know whether he told the time on his watch by the long hand or the short hand. But that is all right. It is a good practice, but it is no test. Gardner remembers it and fixes it even if Lobinsky did not have that watch. He tells us what time he left and the time he was passing by the yard on Second street, and then we have Mr. Newhall, a man from Worcester, who happened to be there. He comes here and tells you that he passed along the street and he fixes the time by the hour that he went to the bank and the places where he was that morning, and you have those three men that hold it down to the time I refer to, that is, half past ten o'clock. Is it not fair to say that Mr. Mullaly is mistaken, to say the least? Then if they want to find anything more about it, we land Mr. Douglass in this case, who was there at the time in Fall River, having a horse. They knew about it and they could have proved about it, and they know it was as we say and yet they did not try to prove it. Gentlemen, as you take cases in court, carefully weighing the evidence, would not you say that Lobinsky went there at the time he states, and that the two others passed along that street, and that he saw Miss Lizzie going into the house? If that is true then the Commonwealth must take back the charge that she lied about going to the barn, and if she did not lie but told the truth about going to the barn, she was out of the house at the very time when the slayer murdered Mr. Borden.
         I will stop at this time for a moment.
         MASON, C. J. The Jury may withdraw with the officers for a recess of five minutes.

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