A POINT FOR THE DEFENSE
Testimony Before the Coroner Excluded by the CourtNew Bedford, Mass., June 12 - The seventh day of the BORDEN trial did not discredit the reputation the cause has earned as unique and crowded with sensations. Gore and hatchets, axes, plaster casts that might have been borrowed from a Bowery chamber of horrors, bloody garments, bits of bloody carpet and blood-spattered furniture and house fittings, these were the stage properties in this legal drama that is winding itself out to the length of a Chinese play. The talk of the witnesses and lawyers went further, and dealt with autopsies and even with things that, though not unfit for publication, are yet much better out of print than in it. In the hallway, just outside the court room, was the bloody sofa on which poor old Mr. BORDEN died so horribly. It was covered all over with guano sacking, but whoever did not know what it was, had it pointed out, so that all were prepared, on the very threshold, for the legal saturnalia that was to go on within.
Miss BORDEN is not well and her face and manner showed it. She is utterly at fault with the reputation she first set up as a human barometer, that showed each morning what the state of her cause would be during the ensuing day. Her illness is trifling, but it served to bring her before to-day's crowd of spectators with all her old heaviness of features. At the jail it is explained that it was the grip that she had in Taunton and though she had it lightly she is far from well of it. Those who are superstitious have given her up as a guide to each day's developments and now depend on a study of the flowers that deck the bench before the three grizzled judges.
Much the most important event of the day was the argument for and against the admissibility of the testimony Miss BORDEN gave at the inquest, when District Attorney KNOWLTON questioned her and she told contradictory stories. Out of court, in the hotel and streets, it has been popularly believed that it would be a bad day for the prisoner, when this testimony, given in her befoggled condition during a day of badgering, should be read to this jury. Some wanted her to have the worst that could befall her. Others wanted her to have a fresh bill of health, with which to meet this ordeal. Thus is society here rent in twain upon the question of her guilt or innocence. This morning was set apart for the hearing of this argument. The court room was crowded, even on the sidewalk the lawyers had to struggle to get through the perpetual and now swollen crowd of women idlers. Great was the curiosity to hear the master lawyer, ex-Governor ROBINSON as a speech maker. District Attorney MOODY, assistant to the local district attorney, made the argument for the admission of the woman's previous testimony, and addressed himself solely to the court and to the legal precedent for what he demanded. It was to be presumed that ex-Governor ROBINSON would follow the same course, but he had his client's cause too deeply at heart and he departed so far from a merely legal argument that the audience enjoyed a sample of the eloquence and art that makes him so strong before a jury.
Miss BORDEN got leave to retire during the argument, and the jury was excluded
from the room. After two hours of talking, pro and con, the three dignified
judges left the room to consult and reach their decision. They were gone a little
more than an hour. When they filed back into the room and the high sheriff with
his suit of blue and brass commanded all to rise until the court was seated,
the strain upon the people in the room was such that at the end an explosion
of suppressed sounds marked the relief that had come to all. The judges found
that Miss BORDEN had been to all intents and purposes a prisoner, charged with
two murders, and her testimony at the inquest was not voluntary. The feeling
of both sides in the controversy over her guilt was that this was a grand piece
of good fortune for her. When the decision was reached by the chief justice,
there was a man in front of and a man behind the correspondent. Both spoke to
him and almost simultaneously.
"That is logic and good law," said one. "The
commonwealth would have been disgraced by any other decision."
"Great God," said the other, "it is a crying
shame that justice should be defeated and a murderer protected because of so
light a point as that decision is based upon."
Miss BORDEN had come into the room and was sitting behind Mr. ROBINSON. She burst into tears, hiding her face in her handkerchief, while her body shook with the force of her emotion. It was then that all who had felt the strain of uncertainty as to the decision of the court first realized what the strain must have been in the case of the prisoner.
_______________
YESTERDAY'S PROCEEDINGS
New Bedford, Mass., June 12 - Over one-half of the spectators in the court room this morning were women, and the second week of the BORDEN trial opens with the appearance of increased interest as the uncertainties of the case are unfolded. The indications of a severe struggle over the admission of the stenographic notes of Miss BORDEN'S testimony at the inquest were plentiful this morning in the piles of books containing authorities to be cited pro and con.
A few moments before court opened counsel on both sides were summoned into the private room of the presiding justices for consultation. Miss BORDEN came into court at 8:50 o'clock, and took her seat within the bar, looking somewhat dragged and in answer to an inquiry from ex-Governor ROBINSON as to her rest last night her words and manner indicated that she did not pass a pleasant night. The consultation lasted twenty minutes. After court was opened and the jury polled, the officers were directed by the court to retire the jury until they were sent for, pending the arguments to follow.
Mr. MOODY then addressed the court, saying he understood the discussion now to be opened was that of the admissibility of Miss BORDEN'S evidence. He said the inquest was held under statute law. He did not understand that there was any question made that the inquest was made in violation of the laws of the commonwealth. The evidence is not in the nature of a confession, but of a denial. There is a difference between confession and statements which may be taken as evidence of guilt. Mr. MOODY cited a case to sustain his view. The precise question, he said, is there anything in the stipulation of the facts which takes this case out of the rule that declarations of the defendant are admissible? There is another rule of law which says that no person shall be obliged to testify against himself, but counsel held this only applied to counselory testimony, and did not apply to voluntary admissions. The line is drawn upon the fact as to whether the prisoner was under arrest or not; if this BORDEN case were in the state of New York the evidence would be admissible. This question has also arisen in Maine, Mr. MOODY said (Here Miss BORDEN was obliged to leave the room because of sudden indisposition.) Counsel held that where admissions were made voluntarily and without compulsion there was no reason for exclusion thereafter. The question has arisen also in the state of Wisconsin, where the only test is whether the declarations were in a ??? voluntarily or not. Here the court ruled that although the principal was under suspicion yet his declarations were made without coercion, purely voluntarily and without asking for the protection of the court.
The chief justice asked whether this case showed that the defendant was present
upon the stand at his own request, and Mr. MOODY replied that it did not.
Mr. MOODY held that where the defendant is the subject of the prosecution,
unknown to himself, and makes a statement of his knowledge of the case, and
is afterward placed under arrest, that his previous evidence may be used, judging
from outside authorities. He then called attention to several cases in this
state. In view of the authorities outside this state and the common practice
all over this state, and that if any error has been committed, this defendant's
rights are secured, Mr. MOODY submitted that this testimony should be admitted.
Mr. ROBINSON, in reply, said it was not a question of to-day whether in times past; departures were taken, but whether they were taken wrongfully; he hoped the court would not take any chances resting upon passing notice of other courts. He stood to-day upon the rights of this defendant at this hour no matter what has been done in the past. We must not lose sight of the facts in this case. (Here he reviewed the main facts of the case leading up to the time of the inquest.)
The murder was committed August 4th, the defendant was placed under police guard, practically, August 6th, and there was no time when the eyes of the police were not on these people, and the defendant knew that the police were around her. The defendant was summoned August 9th.
Before testifying, she requested that her counsel be present, and the request was refused. She stood alone three days, confronted by the district attorney, watched by the city marshal, and at all times surrounded by the police. She was not cautioned at any time. She was summoned on or before August 9th, but the court will see that complaint was made out on the 8th of August; the complaint was in due form on that day, and she was brought into court and practically under arrest. Complaint was made and a warrant issued for her arrest before the inquest. The city marshal held the warrant during all the time she testified. Can any one say she had not been proceeded against? The city marshal stood at her shoulder authorized to make an arrest at any moment. We must assume that this was done under the direction of the district attorney, it was not done at random; when the evidence was concluded she was not allowed to depart, but was placed under arrest. And when she went before the district court she went on another warrant, and the law officers of the county know it; it was an evasion of the law and may operate to deprive her of her rights; she was placed in the custody of the city marshal, he with his hands on her shoulder, she a woman who could not run empowered to pick her up at any time; and that went on for three days, denied her counsel, neglected, so far as the district court or the district attorney were concerned, to tell of her rights. If that is freedom, then God save the commonwealth of Massachusetts. If that was voluntary, then compulsory must hereafter be known.
The inquest was not to discover whether a crime was committed or not, but its use and power devoted to extorting from this defendant something which could be made useful. The government knew these murders had been committed by somebody, possibly by the defendant, possibly by the defendant, possibly by someone else; was the district attorney to determine by whom? Yes, but not by dragging from her facts in such a manner. She was not examined to find out whether se had done these murders, because they had already sworn she had done it; they put this paper in their pocket and say if we get anything out of her we'll put it away; that was worse than burning a dress. On those facts, I will not claim that the material rules of law on confessions are applicable here. Lizzie BORDEN stands on the constitution of this commonwealth, and when the bill of rights no person shall testify against himself, she stands on that; the shield of the state and the shield of the nation are her protection in this hour."
After referring to the cases cited by Mr. MOODY, Mr. ROBINSON said:
"In this case Miss BORDEN had been proceeded against and the warrant
issued, and the city marshal was ‘directed' not ‘permitted,' to arrest her.
There is very little authority for the proceedings against this woman. Had she
been told what she ought to have been told she would not have testified. We
shall have to go far from New England and out of the United States of America
to find anything to go against my assertions. Wasn't it understood that Dr.
DOLAN had found out when the inquest was held that murders had been committed?
The government should have stopped there with Lizzie BORDEN; they knew a homicide
had been committed; they had charged her with it; the warrant was in the officer's
hands, and they should have said: ‘You shall speak when you want to, if you
want to.' That's what old Massachusetts wanted to speak in her ears that day,
but was not permitted. What did they want this woman for? To see if they could
catch her in some way, and to put her on the rack for facts which they had no
right to wring from her."
Governor ROBINSON asked the court to consider the question carefully, in
justice to those who came after.
Mr. MOODY said the argument of Governor ROBINSON was magnificent, but it
was not law. He had seen no citations of law on the matter from Governor ROBINSON:
He had utterly failed to show anything which justified the exclusion of this
testimony. There was no case to be found which would sustain exclusion of this
testimony.
The jury came in at 2 o'clock. Chief Justice MASON said:
"The propriety of examining the witness at the inquest
is entirely distinct from the admissability of her evidence. It is with the
latter question the court has to deal. We are of the opinion that, if the accused
was at the time under arrest her statements were not voluntary, and her evidence
cannot be admitted. From the agreed facts, it is plain that the prisoner was
at the time of the inquest as much a prisoner as ever she has been, and the
evidence is excluded."
At the conclusion of the court's decision Lizzie was obliged to wipe tears
from her eyes, the result evidently affecting her greatly, and her face was
hidden by her fan from the ordinary gaze.
Albert C. DEDRICK, physician of Fall River, was called as the first witness
of the day. On August 4th last year, he went to the BORDEN house after 2 o'clock.
When he got there a number of officers were there, Dr. DOLAN, COUGHLIN and another.
Continuing, he said:
"I examined the bodies and noticed the blood.
That of Mrs. BORDEN was coagulated and ropy. Mr. BORDEN'S was bright and fresh.
Mrs. BORDEN'S body was colder and stiffer. I think she died first, I should
say several hours before." No cross-examination.
The district attorney read an official report of the city clerk of Fall River, that the first Mrs. BORDEN died in 1863, that the second marriage took place in 1865, and that Lizzie was born June 9, 1860.
Dr. William A. DOLAN, the medical examiner, was the next witness, and one
of the heavy weights for the prosecution. Dr. DOLAN said he had studied medicine
in the University of Pennsylvania and that his practice was made up principally
of surgical cases. He said he was perfectly familiar with fractures, in answer
to questions on that point. Dr. DOLEN told of having gone to the BORDEN house.
"Did you have any conversation with Lizzie BORDEN?"
"Yes, I had a little talk with her."
"Where was she?"
"In her room."
"What did she say?"
"I asked her about the note which I had been told
had been received by Mrs. BORDEN. Miss BORDEN told me that Mrs. BORDEN had received
a note from some one who was sick and had gone out. I asked her where the note
was and she said that she thought Mrs. BORDEN had burned it up."
Dr. DOLAN told of where he found the bodies. He was asked to describe the
position of the body of Mrs. BORDEN when he saw it,
"She was lying with her back exposed," he said,
"with her hands almost together in front of her. They were in the same
relative position. The body lay more on the left side than the right. I found,
among other things, the bloody handkerchief. It was near Mrs. BORDEN'S head.
It was quite close to her head. It was an old handkerchief of silk."
The first examination he made of the body, Dr. DOLAN said, was merely casual. The body of Mrs. BORDEN was still warm. He wished to be understood as using the word warm in the medical sense. Blood was dripping from the body when he saw it the first time. Right under the head of the sofa were two pools of blood, each about ten inches in diameter. The body of Mrs. BORDEN was much colder than that of her husband down stairs. The blood was much coagulated and very dark in color. The doctor said that pieces of the carpet which Assistant District Attorney KNOWLTON, who was making the examination, showed him, were those which had been cut out of the floor. When he made his first examination of the body of Mrs. BORDEN, Dr. DOLAN said he found from eight to ten wounds. He made an examination of the body of Mr. BORDEN. The old man had on a cardigan jacket when he was murdered. Dr. DOLAN described what he had found in the way of personal property on the body.
From Bridget SULLIVAN the doctor said he had secured two samples of milk out of the house. It was in glass jars, which he forwarded to Professor WOOD of Boston.
The claw head hatchet, the doctor said, had been handed to him, and he took
it up stairs and placed it beside the samples of milk. He removed the stomach
from each body and sealed them up. He had called at the house a number of times
before he collected all the material which he had gathered. On the claw hatchet
he found spots. He examined them through a magnifying glass.
"Were those spots blood?"
"I don't know whether they were blood or rust."
"Did you find anything else in there?"
"Yes, I found hair on the hatchet."
He indicated where. On one of the axes he found blood. On August 9th he sent
the hair and hatchet to Professor WOOD.
At this point the two pillow shams which had been on the bed beside which
Mrs. BORDEN was found dead and the bed spread from the same room were brought
in. The prisoner covered her face with her hand when that was done.
The pillow shams were shown to the doctor. He was asked to find blood stains
on them. There were no stains on the spread found nearest the body. On the other
one there were a couple of small spots. There were several small spots on the
spread also.
The piece of wood that had been taken from the wainscotting of the sitting
room had a spot on it. The marble top of the dresser in the room where Mrs.
BORDEN was found was also brought into court. The witness told what had been
done with the clothing taken from the murdered couple.
The blue dress that had figured in the case before was brought into court.
Dr. DOLAN said Mr. JENNINGS had given him the blue dress and waist and the white
skirt. On the white skirt was one spot of blood, a spot about the size of a
pin's head.
Mrs. BORDEN, he said, was about five feet three inches tall, and weighed
about 200 pounds. District Attorney KNOWLTON began to talk in a seemingly careless
way about casts. Then he said:
"I've sent out for one."
In a couple of minutes there was a cast of the head of Mr. BORDEN on the
table in front of him. He handed it to the doctor so that the witness might
explain how the wounds were located. One of the wounds was four inches long;
another was half an inch longer than that. Miss BORDEN, when the cast of her
father's head was brought in, covered her eyes with her fan. She did not remove
it, even when addressed by Lawyer ADAMS.
The doctor took one of the hatchets and with its blade against the cast,
illustrated how the hatchet had struck the old man's skull. The skull, he said,
where the blows struck, was one-sixteenth of an inch thick.
"The left side of Mrs. BORDEN'S skull had been crushed
in," the witness continued. "The fracture was four and one-half by
five and one-half inches in size." he described the extent and size of
the other wounds on her head, illustrating with a small cast of a head as he
went along.
Then he began a description of the blood spots he saw in the room where Mrs.
BORDEN was found murdered. Among them were fifteen spots on the looking-glass
of the dressing case.
The spots of blood downstairs were described also. The doctor removed the
skulls of both the murdered persons.
"Would a hatchet be consistent with the wounds you
find on Mrs. BORDEN'S head?"
"Yes."
"In your opinion, could the wounds you found upon
the head of Mrs. BORDEN have been inflicted by a woman of ordinary strength?"
"Yes."
"How long, in your opinion, was Mrs. BORDEN dead before
Mr. BORDEN?"
"About an hour and a half or two hours?"
Cross-examined by Mr. ADAMS:
"I wouldn't insist upon its being 11:45 o'clock, but
I think it was not as late as 11:50 o'clock. Charles SAWYER was there on guard
at the side door when I got there, and Dr. BOWEN was inside; it was he who told
me about going up stairs, but I won't be sure that he went up stairs with me.
Up stairs I think it was not dark, but I don't know whether the shutters were
open wholly, but I think the north shutter was open. When I went there I did
not know that Dr. BOWEN had pulled her arms out. That is what I meant when I
said she was in such a position that she was thus when I saw her, not that this
was the position in which she fell. I know the bed was moved at one time."
Here witness gave the measurements which have already been given. He was
asked if he had changed his mind on any portion of the case between now and
the time of the first hearing. He said he did not recall having said at the
first hearing that the claw-headed hatchet would fit any of the wounds, and
he now desired to change the expression; still he thought this hatchet could
have made the wounds on the head. He said he remembered marking on a china doll
head the dimensions of a crushing blow which were slightly different now, because
he did not have the skulls then; he changed his opinion on this by saying he
could not remember whether the skulls were ready or not, but he would say positively
that he had not examined them at that time.
"Then I had not measured the hatchet, and it was merely
an opinion," said witness. "I had authority from the mayor of Fall
River to make the first autopsy, and permission from other authorities to make
a second one. When I removed the heads I never gave notice to the daughter of
the fact; when I made the second autopsy I discovered the cut on the back of
Mrs. BORDEN; when that blow was given the assailant was standing at the rear;
I discovered no other injury then that I didn't discover at the house; there
were but nineteen altogether, counting the one in the back. When I got those
hatchets I never said there was blood on them, but said there was something
which looked like blood: I know now those hairs were not human hairs which I
found on the hatchets."
The court adjourned until 9 o'clock to-morrow morning.
****
OBITUARY
Death of Ex-Lieutenant Governor HOSKINS at Attica - Other Deaths
Buffalo, N. Y., June 12 - A special to the Express from Attica, N. Y., says that ex-Lieutenant-Governor HOSKINS died there at 8 o'clock this evening after an illness of several months.
______
George Gilbert HOSKINS was born in Bennington, N. Y., December 24, 1824.
He engaged in business in Bennington during his early life, and was a justice
of the peace from 1851 to 1855. He was postmaster of Bennington during the administration
of TAYLOR and FILLMORE, and again under LINCOLN. He was a member of the legislature
in 1860, 1865 and 1866, and was speaker of the assembly in 1865. He was commissioner
of public accounts in 1868-71. In 1871 he was appointed collector of internal
revenue for the twenty-ninth New York district, resigning in 1873 to become
member of congress, where he served until 1877, and was defeated for re-election
in 1878. In 1879 he was elected lieutenant-governor. In 1880 he was a delegate
to the Republican national convention at Chicago.
Buffalo, N. Y., June 12 - A special to the Express from Albion, N. Y., says:
"Almanzor HUTCHINSON, ex-assemblyman, ex-state senator and pioneer politician
of Orleans county, died here to-day. He leaves a widow and five children.
****
SMUGGLED OPIUM
Buffalo, June 12 - United States customs officials seized 200 pounds of smuggled opium at the Erie station at noon to-day. The opium was in two trunks. It came from Toronto, and was brought into the United States by way of Youngstown. It was then brought to Tonawanda by wagon and checked to Chicago via Buffalo.
****
Heavy Hotel Robbery
Glenwood Springs, Col , 12 - A daring robber relieved a number of the guest at the Hotel Colorado yesterday of money and jewelry to the amount of probably $20,000. With a six shooter prominently displayed the fellow walked through the hotel, collected all he could lay his hands on and managed to escape.
****
Is Now Divorced
Brooklyn, June 12 - William H. PLATT, an engineer in the Brooklyn navy yard, whose martial troubles have attracted considerable public attention, finally secured a divorce from his wife, Minnie, to-day. Martin B. WALLER, son of ex-Governor WALLER, of Connecticut, and several other men were named as co-respondents.
****
DEATHS AND FUNERALS
-John McARDLE died last Sunday at his residence, No. 230 Lyell avenue.
-Eugene MARCILLE died last Sunday at St. Mary's Hospital, aged 43 years.
-Mrs. Katherine GOMMENGINGER, widow of Jacob GOMMENGINGER, died last Sunday at the home of her son, No. 58 Orange street.
-Rena, daughter of August and Margaret BERGENER, died last evening at the family residence, No. 9 Wolf park, aged 9 months.
-Mrs. Regina SCHMIDT, wife of John G. SCHMIDT, died last Sunday at the family residence, No. 44 St. Joseph street, aged 47 years.
-Frances SETWICK, daughter of Frank and Anna SETWICK, died last Saturday evening at the family residence, No. 209 Plymouth avenue, aged 7 years.
-Mrs. Nettie GARBUTT HERRING, who had many friends in this city, died last Friday at La Porte, Colorado. She was a daughter of the late Volney GARBUTT, of Greece, and niece of Otto and Stephen BENNETT, of Wheatland She married Rowland HERRING, who, with five children, survives her. She and her family removed six years ago to Colorado, hoping that the change of climate might stay the progress of the disease, consumption, from which she suffered.
****
Simpson's Sink Dry
The work of pumping out SIMPSON'S quarry was completed late last night. A break in one of the engines delayed the work yesterday morning, but after this was remedied the engines were run without stopping until the last of the filthy water had been pumped into the sewer. During the day two hundred barrels of lime were drawn into the quarry and the intention is to scatter this thoroughly about as soon as the water had been taken out. As soon as the pumping from SIMPSON'S was completed an engine in Pike's quarry was set in motion for flushing the sewer with the clean water from that place.
****
ORMOND ELECTROCUTED
The Execution of the Wife Murderer Said to Have Been Successful
Sing-Sing, N. Y., June 12 - John L. OSMOND, who shot and killed his wife, Mary, and John C. BURCHELL, with whom he had been living, was electrocuted at 11:40 A. M. to-day. The electrocution was one of the most successful yet had. OSMUND admitted having committed the deed, and said he was under the influence of liquor at the time. He told Father CREEDON, the prison chaplain, that he regretted what he had done and was prepared to pay the penalty. He said good-bye to his two brothers yesterday and seemed to be perfectly satisfied with his fate. He retired early last night and slept remarkably well for a man on the eve of being put to death. Father CREEDON was with him all morning and remained at his side to the end. The electric chair and the apparatus used were the same employed in the Harris electrocution. OSMOND looked pale, but walked to the chair without faltering. For three seconds 1,750 volts surged through his body; then the current was reduced to 150 volts and at the end of ten seconds was shut off altogether. The body dropped back limp into the chair, and Drs. IRVINE and SHEEHAN listened at the heart for a moment and then pronounced the man dead. There were no signs of burning or scorching.
John L. OSMOND was convicted of the murder of his wife, Mary, and of his cousin, John C. BURCHILL. He and his wife had lived in Burchill's apartments, No. 609 Third avenue, New York city. He became jealous of his cousin, and after repeated quarrels, left the house, and Mrs. OSMOND began proceedings for a divorce. OSMOND went to the flat on October 3, 1891, and killed the woman and her admirer. His conviction for murder in the first degree was affirmed by the court of appeals. OSMOND was in one of the death cells in Sing Sing prison on the night of the escape of Pallister and Rohle, and was an eye witness to the overpowering of the jail guards by those two murderers. When OSMOND was brought before Judge INGRAHAM for sentence his lawyers called the attention of the court to the fact that OSMOND had had an opportunity to make his escape with Pallister and Roehl, but had declined to take advantage of it. The judge said, however, that the only thing he could do was to impose the sentence of death.
__