Chapter XXX: Twelfth Day of the Trial (2)

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 on her from her hair to her feet, on her 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 Prof. 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 could expect it to be; not in the front of the skirt that must, if she 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 round hind side before, before she began, 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 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 forbear 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 was some sort of dark insinuations here floating around that 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 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 that 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 hard stick inside a newspaper and the hardwood 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 defense, through weary nights, troubled about it, until Fleet and Mullaly got here together, and then we were relieved from every doubt. For the handle is in it, and it is out of it. Fleet did not see it; Mullaly did see it. Fleet did not 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 the handle is still flying in the air, a poor orphan handle without a hatchet, flying around somewhere. For heaven’s sake get the one hundred and twenty-five 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 two hundred 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 thirty to thirty-four inches, and you are to conceive of the murderer standing over the 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. And they all agreed 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 it 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, and the district attorney goes away, having done his whole duty, satisfied to let it alone. He does not find any fault about it, he is relieved of it. It is a great relief to him to get rid of the case. He does not 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 home. I suspect you have kind of an impression that it would be a little better for her than it would 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 don’t 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 that 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 the officer stands, or a little further. You are not looking into the door at all. It is not like a good many houses where you come up at the top and are looking in at both doors at the same time. Then it is said that at a 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 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 up and down the stairs and told you nothing of what we wanted you to look at, there is not one of you that would have squinted under that bed on that particular tread of the stairs. You would not 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, and made up your minds that 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 down stairs 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 so at that time as 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 walked down and looked under and 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 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 was down stairs and went upstairs, 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 she lived, the spare room was closed up practically. Mrs. Borden had gone there to make the beds, 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 that it was wide open. Now the government starts out with the idea that the door was standing 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 experience you wouldn’t look. If she had been lying right in 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 say 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. Peirce over at Cambridge who didn’t know his own wife when he met her, and he had been spoken to about it so much 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 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 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 carpet and the boys, and they did not get the light in. The boys wanted to live out in the sunlight, and she did not 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 doctors say, 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 that 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, that Mr. Fleet tells you that Lizzie said she saw Mrs. Borden about 9 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 defense 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 it 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 upstairs 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 a 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 9 o’clock. Mrs. Borden was alive. It is not claimed that she killed them 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 said to Mrs. Churchill and she says: “I said,” meaning herself, “I said, ‘where is your mother?’ She said, ‘I don’t know: she’s just had a note to see some one who is sick.’” Next question: listen to it. “What did Bridget tell about Mrs. Borden having a note?” and, “She said Mrs. Borden had a note to go and see some one 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 some one 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.” No, 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 follows: “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 some one 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 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 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, 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 that 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. Said Dr. Bowen, “I had looked in the waste basket,” and Miss Russell said “have you looked in your 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 waste basket. He had looked around to see if he could find the note. He did not succeed, he calls their attention to it in this way I have stated, 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 had 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?” “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 was told at the very first. 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, and see a woman, and did go out, as far as we learn to the contrary. It was a natural and ordinary thing, and the note was thrown away and tossed into 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 has sent it. That is true. You will find men now, perhaps living in this county, who do not know that this trial is going on. They do not know anything about it, don’t pay much attention to it, they are about their own business: do not consider it of any consequence. And after a lawsuit, it very often happens in every court room 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 the ignorance of the facts as they were to be developed in this case, not with a purpose to wrong her but mis-stating 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. 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 words that I read, how quick some people would be to say, “O, Bridget!” “She 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. You see him. You see the set of that moustache and the firmness of those lips and the distinction he wrought in the court room 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 daughter in that way? You would do just what Marshal Hilliard did with Caldwell, get him out. That is the way to do. 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 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 it’s 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 not 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 open.’”

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 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 these in abundance. You saw the trees; the neighbors saw the trees; Patrick McGowan saw them and got in one of them and helped himself. We know that there is no lie about it. 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 has 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.” 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, ‘O 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 about going to the barn, she says she went to the barn, she told us when she came in she saw her father, and he was killed.” “Did she say anything about why she went to the barn?” “Not until I asked her.” “State what you asked her and what she replied?” “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.’” “Did she refer to any screen in particular, or simply ’my screen?’” “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 into 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 ascent 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 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, ordering something in the presence of a man who talks that way to her, under such 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 closing of the door. Why not? “You were but a short distance away, 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 tree, or even under the first pear tree that stood from the south door to the barn, he cannot see up to that door because of that jog. So that if she was even out under that pear tree anybody could have passed in or out that side door without her hearing him, much more if she were in the barn, either upstairs or down stairs. Wilson has told us that she said, “twenty minutes to half an hour.” He was there with Fleet. Medley says, “She says she was upstairs in the barn—I am not positive as 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 of 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 the 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 seafish, 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. He had to stay in the court room until the other fellow was heard to hold him. We had twins here; they didn’t look alike. We kept them here; that is Mr. Mullaly.

Now you are going to say, gentlemen, 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 in the police court. Now, Mr. Foreman and gentlemen, the government knew where Mr. Lobinsky was, and that was at the tinshop 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 11 o’clock or 10:30. 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 11 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 11 or five minutes past 11 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. Its good practice, but it is no test. Gardner remembers it, and gives it, even, but Lobinsky did not have the watch. He told 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 he went 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 these three men that hold it down to the time I refer to, that is 10:30 o’clock. Is it not fair to say 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. 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. 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 that 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 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 passenger on the street. There comes along a pedler, 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 pedler, 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 round the corner just before she would ascend those side steps. Now there was no other woman alive in the house except Bridget and Lizzie at that time. He knew it was not Bridget by the best 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.” Recollect, that was Lizzie or some stranger in the yard. You will say undoubtedly it was Lizzie as she comes back from the barn. It may be asked why did he look in. I say because anyone might do so. They say Lizzie must have looked under the bed. I say Lubinsky must have looked into the yard. He was an enterprising young man, he was looking for business because he has 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 brought 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 on 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. Lubinsky 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. Lubinsky and Mr. Lubinsky told him it was half-past ten o’clock. Now, if Mr. Lubinsky went by that yard at half-past ten he did not see Miss Lizzie go to the barn. Is Mr. Mullaly mistaken? Gentlemen, as you take cases in court, carefully weighing the evidence, would not you say that Lubinsky 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. 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.

Chief Justice Mason: “The jury may withdraw with the officers for a recess of five minutes.”

One other thought, as you remember, that Lubinsky saw Manning as he was going down and I think Gardner and Newhall also and you know when Manning got there to the house all about it, so that you see it is confirmed again in another way. Then they have an opportunity to find out by Mr. Wilkinson whether this man was really late that day or not, and as they have not told anything to the contrary, we will assume that that is proved. Now the district attorney brought out the fact from Mrs. Bowen that when Lizzie sat there in the kitchen her hands were white and she was pale and distressed, as you know from other witnesses. And I suppose from that he is going to argue to you that she was not all covered with rust and dust that she got in the barn. Well, you will see the strength of that argument, and think what it amounts to. Think whether she could not go up there and look; whether she picked up anything there or not nobody knows. I don’t know how he can tell whether she was fumbling around with dusty iron and lead. There is no evidence here about it, and I have seen many a young woman, and I presume most of them, who could walk out into the barn and come back without getting their hands dirty. So I will not stop long about that. Bridget told about the groan and Mullaly told about the scraping, speaking of her statements, but there is nothing else.

Whether she said that or not, we don’t know. If she did, it was nothing more than the statement that all of us are likely to make. When anything happens we imagine that we heard something; if it had not happened we should not have heard anything. How common that is. Then there were noises not connected with this tragedy which might actually have been heard. There are noises in that street; you were there long enough to find out about that; such noises are a common occurrence. Then it may be that the people in their excitement—Bridget in great excitement because she was running about breathless to find something and Mullaly in the breathlessness of his search may have got it wrong—may not have got it just right. It is not a serious matter. They may argue it for all it is worth on the part of the commonwealth. She thought she heard Mrs. Borden come in. They undoubtedly will make something out of that, so I want your attention there to see about that. This comes now in the first place from Bridget Sullivan. She is asked, after detailing the circumstances to a certain point, “What happened then?” You recollect that Bridget had told Mrs. Churchill that Mrs. Borden had a note and had gone out—“hurried off, did not tell me where she was going.” So you see anything from Bridget about that note and about Mrs. Borden coming in is all sustained. Now Bridget Sullivan says, in answer to the question, “What happened then?” “O, I says, Lizzie, if I knew where Mrs. Whitehead’s was I would go and see if Mrs. Borden was there, and tell her that Mr. Borden was very sick.” You see the confirmation about that note business right there right off. What should she say that she should go and see Mrs. Whitehead for if Mrs. Borden was there, unless she (Bridget) knew that Mrs. Borden had a note and supposed she had gone out as they both did. Then Lizzie said, “Maggie, I am almost positive I heard her coming in, and won’t you go up stairs and see.” Bridget said: “I am not going up stairs alone.” Now, following the testimony down, the very next question is: “Before that time that she said that, had you been up stairs?” “No, sir: I had been upstairs after sheets for Dr. Bowen.”