Eleventh Day of the Trial.
During the forenoon of the eleventh day, Andrew J. Jennings Esq.,
presented the defendant’s case as follows: “May it please your honors,
Mr. Foreman and gentlemen of the jury,—I want to make a personal
allusion before referring directly to the case. One of the victims of
the murder charged in this indictment was for many years my client
and my personal friend. I had known him since my boyhood. I had known
his oldest daughter for the same length of time; and I want to say
right here and now, if I manifest more feeling than perhaps you think
necessary in making an opening statement for the defence in this
case you will ascribe it to that cause. The counsel, Mr. Foreman and
gentlemen, does not cease to be a man when he becomes a lawyer. Fact
and fiction have furnished many extraordinary examples of crime that
have shocked the feelings and staggered the reason of men, but I
think no one has ever surpassed in its mystery the case that you are
now considering. The brutal character of the wounds is only equalled
by the audacity, by the time and the place chosen here: and, Mr.
Foreman and gentlemen, it needed but the accusation of the youngest
daughter of one of the victims to make this the act, as it would seem
to most men, of an insane person or a fiend. I do not propose to go
into details about the character of those wounds or the appearance
that was presented. I think you have heard sufficiently about that
already. But, Mr. Foreman and gentlemen, knowing what they were, the
person who is arrested for doing the deed which I have characterized
as I have was the youngest daughter of one of the victims themselves.
A young woman, thirty-two years of age, up to that time of spotless
character and reputation, who had spent her life nearly in that
immediate neighborhood, who had moved in and out of that old house for
twenty or twenty-one years, living there with her father and with her
step-mother and with her sister—this crime that shocked the whole
civilized world, Mr. Foreman and gentlemen, seemed from the very first
to be laid at her door by those who represented the government in the
investigation of the case. We shall show you that this young woman as
I have said had apparently led an honorable, spotless life: she was a
member of the church: she was interested in the church matters: she
was connected with various organizations for charitable work: she was
ever ready to help in any good thing, in any good deed, and yet for
some reason or other the government in its investigation seemed to
fasten the crime upon her. Now a crime like this naturally awakens at
its first result a sort of a selfish fear in men. There is really an
outcry of human hearts to have somebody punished for the crime. But,
Mr. Foreman and gentlemen, no matter how much you may want somebody
punished for the crime, it is the guilty and not the innocent that
you want. The law of blood for blood and life for life, Mr. Foreman
and gentlemen, even in its most stringent form in the past, never,
except in barbarous and uncivilized nations, called for the blood of
the innocent in return for the blood or life of the murdered one. Our
law—and it is the law that you have sworn to apply to the evidence in
this case—presumes every man innocent until he is proved guilty, not
guilty until he is proved innocent. I know you may say it is the duty
of the State to vindicate the death of one of its citizens. Mr. Foreman
and gentlemen, it is a higher duty, and one recognized by the law of
this State, that it shall protect the lives of its living citizens.
The law of Massachusetts to-day draws about every person accused of
this crime or any other the circle of the presumption of his or her
innocence, and allows no juryman or jury to cross it until they have
fulfilled the conditions required: until they show that it has been
proved beyond a reasonable doubt that he or she is the guilty party,
they are not allowed to cross the line and take the life of the party
who is accused. The commonwealth here has charged that Lizzie Andrew
Borden, in a certain way, at a certain time, killed Andrew Jackson
Borden and Abby Durfee Borden with malice aforethought. And that alone
is the question that you are to answer: Did she on that day commit
that deed? Did she commit it in the way alleged, or to put it in its
other form, have they satisfied you beyond a reasonable doubt that she
did it? And what is a reasonable doubt? Well, I saw a definition, and
it struck me it was a very good one. A reasonable doubt is a doubt
for which you can give a reason. If you can conceive of any other
hypothesis that will exclude the guilt of this prisoner and make it
possible or probable that somebody else might have done this deed, then
you have got a reasonable doubt in your mind. Now, Mr. Foreman and
gentlemen, I want to say a word about the kind of evidence. There are
two kinds of evidence, direct evidence and circumstantial evidence.
Direct evidence is the testimony of persons who have seen, heard or
felt the thing or things about which they are testifying. They are
telling you something which they have observed or perceived by their
senses. For instance, if this was a case of murder by stabbing, and a
man should come before you and testify that he saw the prisoner strike
the murdered person with a knife, that is direct evidence; that tends
directly to connect the prisoner with the crime itself. Circumstantial
evidence is entirely different and I want to say right here, Mr.
Foreman and gentlemen—I call your attention to it now, and I do not
think that the commonwealth will question the statement when I make
it—that there is not one particle of direct evidence in this case from
beginning to end against Lizzie Andrew Borden. There is not a spot of
blood, there is not a weapon that they have connected with her in any
way, shape or fashion. They have not had her hand touch it, or her eye
see it, or her ear hear it. There is not, I say, a particle of direct
testimony in the case connecting her with this crime. It is wholly and
absolutely circumstantial. In proving a murder it is necessary for the
government to prove that all of the facts existed which to your minds
make you morally certain that the murder must have followed from it.
In other words, in circumstantial evidence it is simply an opinion on
your part, it is simply an inference drawn by you as to the facts that
are proved as to whether the essential issue has been proved or not.”
Here Mr. Jennings cited several cases intended to show how uncertain is
circumstantial evidence. Continuing he said: “It is not then, as I said
before I started upon this long talk about circumstantial evidence, and
I hope you will pardon me, for I think it is very important that you
get this point in your mind, it is not for you to unravel the mystery
of how he died. It is not for you to withhold your decision until you
have satisfied your mind as to how it was done, and just who did it.
It is, have they furnished the proof, the proof that the law requires,
that Lizzie Andrew Borden did it, and that there is absolutely no
opportunity for anybody else. Now, Mr. Foreman and gentlemen, I have
taken a little more time than I intended to in discussing the question
of circumstantial evidence. I have said that it was necessary for them
to prove beyond a reasonable doubt the allegation of the indictment.
Circumstantial evidence has often been likened to a chain. These facts
which have to be proven in order to allow you to draw the inference
as to her guilt or innocence have been called links in the chain,
and every essential fact, Mr. Foreman and gentlemen, every essential
fact in that chain must be proved beyond a reasonable doubt—every one
of them. You cannot have it tied together with weak links and strong
links. You cannot have certain facts in there which you believe and
tie them to some other facts of which you have a reasonable doubt. You
cannot put them together. You must throw aside every fact about which
you have any reasonable doubt, and unless with the lines which you have
left you can tie this defendant to the body of Andrew J. Borden and
Abby Durfee Borden, you must acquit her. That is the law, and that is
the law you have sworn to apply to the evidence. Now Mr. Foreman, we
contend that with the evidence that has already appeared in this case,
and what will be shown to you, there is absolutely no motive whatever
for the commission of this crime by this defendant. They have not a
scrap of evidence in the case but that which was given by Mrs. Gifford,
and you have heard also the evidence of Bridget Sullivan. But it may
be said that it is not necessary to prove the motive. Somebody killed
them; what motive did somebody else have? We cannot tell, Mr. Foreman
and gentlemen. One of these persons that is killed is this girl’s own
father. And while in direct evidence, where the person was seen to
kill, where they have been directly connected with the killing, it is
of little or no importance whether a motive is shown or not, (if you
kill, the law infers a motive, the law infers a motive there, direct
evidence connects you with the crime,) yet, where, Mr. Foreman and
gentlemen, you want the motive in order to have it as one of the links
in the chain which connects the crime with its defendant, it becomes of
tremendous importance. Tremendous importance; and we shall show you, if
not already shown that this defendant lived quietly with her father;
that the relations between them were the relations that ordinarily
exist between parent and daughter. We shall show you by various little
things, perhaps, that there was nothing whatever between this father
and his daughter that would cause her to do such a wicked, wicked act
as this. And I want to say right here, Mr. Foreman and gentlemen, that
the government’s testimony and claim, so far as I have been able to
understand it, is that whoever killed Abby Durfee Borden killed Andrew
J. Borden; and even if they furnish you with a motive on her part to
kill the step-mother, they have shown you absolutely none to kill the
father. Absolutely none; unless they advance what seems to me the
ridiculous proposition that she, instead of leaving the house after
killing the mother, waits there an hour or an hour and a half for the
express purpose of killing her own father, between whom and herself
there is shown not the slightest trouble or disagreement whatsoever.
In measuring the question of motive you have got to measure it in this
case as applied between the defendant and her father, because, as I
understand it, the government claims that whoever killed one killed
both. Now as to the weapon, Mr. Foreman and gentlemen, I do not know as
it is necessary for me to say much about that. The blood that was shown
upon the axes, which was guarded so carefully at first in this case, as
shown by the evidence, has disappeared like mist in the morning sun.
The claw-headed hatchet that Dr. Dolan was so sure committed the deed
at the Fall River hearing, so sure that he could even see the print
which the claw head of the hatchet made in the head of Mr. Borden has
disappeared from the case. And I would like to remark in passing, Mr.
Foreman and gentlemen, that it didn’t disappear until after Prof. Wood
had testified so absolutely on that, to the counsel for the defense,
glorious morning in Fall River, that there was not a particle of blood
upon either one of those hatchets, and that they could not be cleaned
in any reasonable time from blood if they had been used in killing
those persons.
“And Mr. Foreman and gentlemen, I want to call your attention right
here that there has not been a living soul put upon the stand here to
testify that they saw Andrew J. Borden come down street from his house.
From his house to the Union Savings Bank he was actually invisible.
Was it any easier for him to be than it would be for somebody escaping
from this house if they walked quietly away? But we shall show you, in
addition to that, there were other strange people about that house;
people who have not been located or identified. We shall show you
that the government’s claim here about Miss Lizzie’s not having been
out to the barn is false, and that this—well, if it was not for the
tremendous importance, I should be tempted to call it cakewalk of
Officer Medley in the barn, exists in his imagination alone. We shall
show you by evidence which I think will convince you—as we are not
bound to convince you, beyond a reasonable doubt, that people were
up and around and in that barn and all over it before Officer Medley
opened the door. And I think we shall satisfy you that Miss Lizzie did
go out to that barn, as she stated in those conversations, and was out
there when this deed was committed, so far as Mr. Borden was concerned.
As to the burning of this dress, we shall show you that it did have
paint on it, according to the statement which was made by Miss Lizzie
in the testimony of Alice Russell; that it was made some time in May;
that soon after it was made this was got upon it; that the dress was
soiled and useless, and that it was burned there right in the broad
light of day in the presence of witnesses, with windows open, with the
inside door open, with officers on every side of that house. And so,
Mr. Foreman and gentlemen, without spending further time, we shall ask
you, if you believe this testimony which has been offered or drawn
out, rather, from the government witnesses by the cross-examination
of the defense, supplemented as it will be by the evidence which I
have suggested, we shall ask you to say in view of the presumption in
favor of human nature, in view of the feelings which exist between a
father and a daughter who stand here, so far as the evidence to-day
is concerned, just as every other father and child stood, from the
presumption of innocence which the law says you shall consider, from
the fact that there is no blood, not a spot upon her hand, her head,
her dress or any part of her, no connection with any weapon whatever
shown by any direct evidence in this case, with an opportunity for
others to do the deed, with herself in the barn when the deed was
done, we shall ask you to say, Mr. Foreman and gentlemen, whether the
government has satisfied you, beyond a reasonable doubt, that she did
kill not only her stepmother, Abby Durfee Borden, but her loved and
loving father, Andrew Jackson Borden, on the fourth day of August last.”
The first witness for the defense was Sarah R. Hart, of Tiverton, and
she said: “I knew Andrew J. Borden by sight, and knew where he lived; I
had a sister who lived in the Dr. Kelly house some fifteen years, and I
was in the habit of going there frequently; on the day of the murders I
passed by Mr. Borden’s house with my sister-in-law, Mrs. Manley; it was
about 9:50; we passed by the north gate and stopped there to speak to
my nephew, who was there in a carriage, and went up to the back of his
carriage. While I was there I saw a young man standing in the gateway;
it was not Mr. Borden; he was resting his head on his left hand, his
elbow being on the gatepost; I was there five minutes and he was there
when I went away.”
Charles S. Sawyer was then called: “I was in No. 61 Second street, Mr.
Rich’s shop, when I heard that a man had been stabbed, and I went out
on to the street; I saw Mr. Hall and Miss Russell; she was going up on
the other side of the street and I went over to talk with her; I walked
along with her until I got to the gate of the Borden house, when I
turned around and walked away; when I turned away, I met Officer Allen
at Mrs. Churchill’s gate; I went back with him and he put me on guard
at the side door, after we had been in the house. When I was in there
Miss Russell, Mrs. Churchill, Miss Lizzie and Miss Bridget Sullivan
were in the kitchen; Miss Lizzie was sitting in a rocking chair and
the others seemed to be working over her, fanning her and rubbing her
hands; I was close to her all the time; she appeared to be somewhat
distressed; I saw no signs of blood on her head, hair, hands, or dress;
I cannot tell what kind of a dress she had on, whether it was dark or
light; after that I was back and forward in the entry, and when people
came I let them in; sometimes I was out on the steps.”
Mark Chace testified to having seen a strange man in a buggy in front
of the Borden house that forenoon.
Dr. Benjamin J. Handy. “I went by the house on the morning of the
murder at 9 and 10:30; saw a medium-sized young man very pale in
complexion, with eyes fixed on the sidewalk passing slowly towards the
south; he was acting strangely: in consequence of his appearance I
turned in my carriage to watch him; he was acting different from any
person I ever saw on the street in my life; he was agitated and seemed
to be weak; he half stopped at times and then walked on; he seemed to
be mentally agitated, by the intensely agitated expression on his face;
I think I had seen him before, some other day; there was nobody else on
the sidewalk.”
John J. Manning, reporter. “I first heard of the Borden murder some
time before 11:30; Mr. O’Neil, city editor of the _Fall River Globe_,
told me to go up Second street as there had been a stabbing affray
there, and I ran most of the way; when I was going there I saw Mr.
Cunningham, Bolles and one or two others; I went into the yard and up
to the house, and found Mr. Sawyer at the door; he wouldn’t allow me
to go in, and I sat down on the steps. Dr. Bowen came, but I wasn’t
allowed to go in; then Officer Doherty and Mr. Wixon came and I was
allowed to go in with them; I went into the kitchen and found Miss
Borden, Miss Russell and Mrs. Churchill near her, fanning her; went
into the sitting room and Dr. Bowen showed me the body of Mr. Borden
and described the wounds; then I went up in the guest chamber with Dr.
Bowen; my recollection as to this room is that it was not very light;
Officer Doherty pulled the bed away so a better view could be obtained
of the body; then I went down stairs and into the kitchen, but the
people had gone from there; Bridget Sullivan was sitting on the back
stairs; I can’t say how long I had been in the house; but when I came
out I think I saw Mr. Fleet on the north side of the house; then I
went around on the east side, walked along the Kelly fence, walked
along a pile of lumber and then came to the barn, where I think there
were two or three persons inside; there were other people about the
yard, but I don’t recall any boys there. Coming out of the barn, Walter
Stevens and I went around the house looking for footprints; we tried
the cellar door, but found it fast; I never saw Medley there; I got
back to the office at 11:50; I remember the story of the publication of
Mrs. Reagan’s story, and I had an interview with her; I think it was
the same night of the publication; in answer to a question from me, she
said there was nothing in it; I wanted to know whether it was true or
not, and I wanted a negative or affirmative statement.”
Thomas F. Hickey, reporter, of the _Fall River Globe_. “As reporter I
saw Mrs. Reagan on Friday about the story referred to above; I said:
‘I see you’re getting yourself in the paper, Mrs. Reagan;’ she said:
‘Yes, but they have got to take that all back;’ I asked her about the
quarrel and she said there had been no quarrel; I asked her if she had
repeated any of the words of the sisters; asked her if there was any
truth in the report, and she said absolutely none.” Cross-examined—“I
represent the _Boston Herald_, and the _Boston Globe_ published the
story. The _Globe_ had what is called a ‘scoop,’ although I understood
that morning that the _Herald_ had published the story; I went into her
room where she was on duty and was alone; I knew her; I was sent by Mr.
Billings and was after something to offset the _Globe’s_ ‘scoop.’”
Mrs. Mary R. Holmes, Fall River, wife of Charles J. Holmes. “I know
Miss Borden and have known who she was from childhood; she is a member
of the church I attend, the Central Congregational; she has been a
member five years and has taken part in much of the church work; I was
engaged with her in some of the special work of the church; she was on
the hospital board with me, but she was engaged in the Chinese work
while I was in the Bible class; I am considerably older than she. I
was but little acquainted with Mrs. Abbie D. Borden, although she was
a member of the same church; I have seen Miss Lizzie Borden and her
stepmother at church together; I first heard of the Borden murder at
11:45; I went to the house about 1 o’clock and sat down in the kitchen;
someone told me soon after that Lizzie would like to see me; she was
in her room and some men were talking with her; I don’t think Officer
Fleet was there then; I think Dr. Bowen came up a few minutes after,
and before Officer Fleet came; we locked the door because there were
so many men about that we didn’t want them to come in the room. I had
a talk with Mrs. Reagan about the quarrel story, and she said, ‘Mrs.
Holmes, you know it is not so.’”
Charles J. Holmes, Fall River, banker, testified that he had lived in
Fall River fifty years; “I know Miss Lizzie Borden; I was present at
the hearing on the first day in the Fall River court house; I know
about the paper given Mrs. Reagan to sign; it was read to Mrs. Reagan;
I heard it read; I have a copy of the original paper in my pocket; I
have a copy of the newspaper in which it was published also.” Here
witness produced a copy of the _Fall River Herald_ saying, when he saw
it, that he supposed it was a copy of the _Daily News_ of that city,
but after diligent search the article was found and vouched for by Mr.
Jennings. Witness was shown a type written copy of the same, identified
it and read it; it was essentially a denial of the story. “It was read
to Mrs. Reagan and she said it was true and that she would sign it, if
the marshal would allow her; then Mr. Buck and she went down to the
marshal’s office; then they came back and went into the matron’s room,
and I don’t know personally what happened there; down stairs, after the
marshal refused to allow her to sign, I had a part in the altercation
which ensued.”
Cross-examined—“I heard Mr. Jennings’ voice and a reporter whom I
think was Mr. Porter; there was a very heated conversation, and I had
an idea that he was connected with a Fall River paper; I attended the
trial all through as a friend of Miss Borden; I don’t think that Mrs.
Reagan had ever been summoned as a witness, and the only reference
to the taking back of anything was as to what was published in a
newspaper; the day was one of a great deal of excitement; I was trying
to get a denial from Mrs. Reagan of the story over her own signature,
and it had no bearing upon the case then going on in court; it was
simply to correct one newspaper story; she never signed it.”
John R. Caldwell, reporter, New York. “I reported the trial in Fall
River; I recall the date when Mrs. Reagan was asked to sign the paper,
and saw it read to her, but was too far off to hear what was said; Mrs.
Reagan took the paper to Marshal Hilliard and he said if she signed it,
it would be against his orders; then she went out and he ordered me
out.” Cross-examined—“I don’t know that Hilliard said she would say
what she had to say in court; there was quite a crowd in the corridors
when Mrs. Reagan went down, most of it being reporters; Mr. Percy,
another reporter and I were the only ones who went into the office; Mr.
Percy is now in Italy.”
Mrs. Mary E. Brigham, Fall River. “I know Lizzie Borden, and have
known her all my life; we were life-long friends, and attended the
same church; I visited her quite frequently; Mrs. Reagan told me one
day, after court, when we were in the matron’s room, about a quarrel
between the sisters; I saw Mr. Buck with a paper in his hand, which he
read to her; they both went out, and she came back mad; she said she
was willing to sign the papers, but the marshal wouldn’t let her; that
she would rather leave her place than to stay where she had been lied
about; that it was all a lie and there had been no quarrel.”
Miss Emma L. Borden, sister of Lizzie Borden. “We have lived in the
house we now live in twenty-one years last May; at the time of the
murder Lizzie was possessed of property as follows: $170 in the B. M.
C. Durfee Safe Deposit and Trust Co., $2000 in the Massasoit National
Bank, $500 in the Union Savings Bank, $141 in the Fall River Five Cents
Savings Bank, two shares of the Fall River National Bank stock, four
shares of the Merchants Mfg. Co. stock and five shares of same, another
date. My father wore a ring on his finger,” said witness, after the
property list had been read; “it was given him by Lizzie; she had worn
it herself before; he constantly wore it after, and it was buried with
him; I have an inventory of the clothes in the closet on the afternoon
it was searched, made up about a week ago, from recollection; there
were eighteen or nineteen dresses in there; only one belonged to Mrs.
Borden; the others were Lizzie’s and mine; there were ten dresses there
in which blue was a marked color; eight were Lizzie’s, two were mine; I
was there when the search was going on. Lizzie and I both went to the
attic to assist them in opening a trunk; we never made the slightest
objection to their searches and told them to come as often as they
could and make as thorough searches as they could; the Bedford cord
dress was made the first week in May at our home; it was a very cheap
dress, twelve and a half or fifteen cents a yard, and about eight or
nine yards in it; plainly trimmed; not more than two days were used in
making the dress; Lizzie and I assisted, as we always did; the work
was done in the guest room where it was always done; the dressmaker
made several for us at the same time. The painters began work after
the dress was made; Lizzie got some paint on this dress within two
weeks after it was made; she got the paint on the front breadth and
on the side; that dress was hanging in the front closet on the day I
came home; I know because I went in to hang up a dress and found there
was no nail. I said, ‘You have not destroyed that old dress yet; why
don’t you do so?’ It was very dirty, badly faded, and I don’t remember
having seen her use it for some time; it couldn’t have been made over
because, besides being badly soiled, the material and collar were such
as to render it impossible; it was a very long dress, an inch and a
half longer than her pink wrapper; the sleeves were full and the waist
was a blouse; the back skirt was longer than any other dress except
those cut en train. She had no other dress which she could have got on
over that dress, because they were too snug; she could not have had it
on under the pink wrapper, because it would have shown; the next I saw
of the Bedford cord dress was in the kitchen on Saturday, when I heard
my sister’s voice; I looked around and saw her with the dress on her;
she said, ‘I’m going to burn this old dress,’ and I said, ‘I would,’ or
‘Why don’t you,’ and turned away; I didn’t see her burn the dress; Miss
Russell was there at the time. On Monday Miss Russell came to us in the
dining room and said she had told Mr. Hanscom a falsehood, and I asked
her what that was for; she said he asked her if all the dresses were in
the house that were there at the time of the murder, and she had said
yes; and then it was decided between us all that she should go and tell
Mr. Hanscom she had told a falsehood; my sister said at the time, ‘Why
didn’t you tell him about it; why did you let me do it?’ I remember
the story about the quarrel between my sister and I; it was told me by
you (Mr. Jennings) the morning the story was published; I never had
any such conversation with my sister as was reported; there was never
any trouble or quarrel in the matron’s room between us while she was
there or anything that could be construed into a quarrel; Lizzie never
did put up her finger and say anything about giving in; there was no
conversation about you (Mr. Jennings) telling her (Lizzie) all.”
[Illustration: W. T. BILLINGS.]
Mrs. Mary Raymond, dressmaker. “I have done dressmaking for Lizzie
Borden at her home; I also worked for Mrs. Borden; I made some dresses
for Lizzie last spring (1892); I went to the house the first week in
May and was there three weeks; the Bedford cord dress I made, the
first one because she needed it; it took about three weeks and the
sisters helped me; it was a light blue dress with a dark figure; it
was made with a blouse waist and full skirt; the skirt was longer by
half a finger than she had been in the habit of wearing; it was a
cheap cotton dress with little trimming. The painters were painting
the house when Lizzie was wearing the dress; she put it on as soon as
it was done; I saw the dress after it was ‘painted’; the paint was on
the front and back; she had an old wrapper which this was to take the
place of; she cut some pieces out of the old wrapper while I was there
and took it down stairs; she couldn’t get that dress on under any other
dress.”
Hyman Lubinsky was called, and there was a show of interest manifested
in the audience. “I am a pedler, and remember the time of the Borden
murder, but I did not know where the house was until afterwards; I keep
my horse at Gardner’s stable; that morning I went by the Borden house
in my team, leaving the stable a few minutes after. When I got to the
Borden house I saw a lady come out of the barn and walk to the side
door steps; she had on a dark colored dress and nothing on her dress;
I don’t remember whether she went into the house; I was in my team; I
know the servant and have delivered her ice cream; I am sure she was
not the lady I saw approaching the house.” This ended the testimony for
the defense and the court adjourned until Monday.