Lizzie

6: New Bedford — 1893

“Be good enough to lift your veil. What is your full name? ”

“Anna H. Borden.”

“You live in Fall River, Miss Borden, do you?”

“Yes, sir.”

”And have all your life?”

“Yes, sir.”

“You are, I believe, not a relative of the prisoner.”

“No, sir.”

“How long have you known her?”

“About five years.”

“Did you at some time make a trip abroad with her?”

“I did.”

“In what year?”

”1890.”

“Did you occupy the same cabin in the steamship?”

“I did.”

“On the outward and homeward voyages?”

“I did.”

“When was your return voyage? What time did you arrive in New York, if you landed in New York?”

“I think it was the very first of November.”

“And your voyage was about the preceding week? The week preceding the first of November?”

“Yes, sir. The last week of October, I think.”

“During that voyage, did you have any talk — during the return trip, I am speaking of now — did you have any talk with the prisoner with respect to her home?”

“I object to that,” Robinson said.

“What year?” Chief Justice Mason asked.

“1890,” Moody said. “The week preceding the first of November in 1890. And this is simply a preliminary question. On the question of the admissibility of this testimony, I should like to say a word to Your Honors. I wish to call attention to the nature of the conversation in arguing upon its admissibility. Your Honors can very readily see that statements which indicate a permanent alienation may be of importance even though quite distant from the time under inquiry. In order to fully understand the nature of this testimony and its importance, I shall be obliged to state more fully about it. It is merely a preliminary question now.”

“I object to the question on the threshold of the subject,” Robinson said. “If there be any statement of substance, we will consider that subsequently.”

“The witness may step down,” Mason said. “The jury may retire with the officers and remain until sent for.”

It was very hot for so early in June.

The shuttered windows on one side of the small courtroom were open wide to the street below, but there was scarcely a breeze and the glare beyond the glass panels seemed as bright as the burnished brass of the four gas-burning chandeliers that hung from the ceiling. The courtroom was situated on the second and uppermost floor of the old brick building that was New Bedford’s Superior Court House, a structure graced with a roofed white porch and Corinthian columns but nonetheless eclipsed by the more pretentious residential dwellings in this remote section of the city. Outside the Court House, heavy strands of cable and telegraph wires had been strung from tall poles into the rear of the building and the old carriage sheds. Roughly improvised fences, constructed to keep back the curious crowds, lined the green sloping banks on either side of the concrete walk leading to the entrance.

This was the only courtroom in the building, and it was approached by a stairway leading upward from the ground level. The stairwell created an awkward opening in the courtroom floor, and the haphazard design was further cluttered by the witness box and the jury box to the left of the judges’ high bench, the spectators’ slat-backed wooden benches tiered at the back, the long tables and stools arranged near the court crier’s box, and the hasty accommodations erected for the use of reporters. For several days now the newspaper representatives had been here in force, and each train still added to their swelling number.

Originally, a space in the courtroom beside the jury box had been set apart for them, and boards on sawhorses were set up as makeshift desks. But these could accommodate only twenty-five people and the space was promptly monopolized by the Bristol County and Boston papers. Yesterday, just before the prosecution began its opening statement to the jury, seats and desks were set up near the dock occupied by Lizzie and her attorneys. These were awarded to the reporters of the Providence Journal. The reporters from the New York dailies and the Baltimore Sun — and this pleased Lizzie because the description of her in the Sun still rankled — were left to take their chances finding places among the spectators, who had all been furnished tickets for their seats. Even before what properly might have been considered the first true day of the trial — when the jurors were being selected — the advance corps of newspaper artists had been on the spot, sitting on fences in the vicinity of the Court House, sketching everything immovable and even curious passersby. Lizzie had seen them roving around inside the House of Correction, and they were inside the courtroom now, drawing the interior of the place, making sketches of anyone and anything in sight.

On the day following the selection of jurors, she had been pleased to read an account in the Providence Journal that described her somewhat more flatteringly than had that in the Sun. She had, of course, been cautioned by her attorneys not to read any of the news stories written about the trial, lest they overly upset her and cause her to appear unlike her true self in the courtroom, where all eyes were upon her, and where the artists’ pencils scratched interminably at their pads. It was far easier to avoid the stories printed in the New York Times and the Baltimore Sun — and, oh, how she wished she had — but those in the Journal were available daily here in New Bedford.

“Lizzie Borden is still a marvel,” the article had begun.

How many lines have been written descriptive of the immobility of her countenance, how many word portraits have been painted of her steady and unfailing nerve, of her remarkable self-possession, of her power of control and self-reliance. Yet at each apparent crisis in her career, the watchers have waited for an evidence of weakness, they have looked for a sign of what — for want of a better name — may be termed ‘femininity’, they have waited for the first sight of nerve failure. And all in vain, for though these seekers are told that in the seclusion of her own forced retreat, when there is no one to gaze upon her every action, the woman is the same as other women: this person of the unflinching nerve and steadfast demeanor becomes the torn and tortured girl. Yet there is no weakening in public, and the curiosity mongers are still unsatisfied. And this, after all, is as it should be, for why should Lizzie Borden expose to the world her sorrow and her pain?

Her face expressionless now, she watched as Moody approached the judges’ bench to argue this question of the admissibility of Anna Borden’s testimony.

From where George Dexter Robinson sat at the defense table, attorney Jennings on his left, attorney Adams on his right, he had an unobstructed view of the bench as opposing counsel approached it.

“Your Honors,” Moody said, “the evidence which we offer is substantially this. That upon the return voyage, after this witness and the prisoner had spent the summer in various parts of Europe in travel, there was this conversation which I am about to state, which was several times repeated. It was, in substance, that she — the prisoner — regretted the necessity of returning home after she had had such a happy summer, because the home that she was about to return to was such an unhappy home.

“This conversation, as I say, was repeated several times, and we submit that it would be competent. I should agree that if at that time there had been any characterization of Mr. and Mrs. Borden such as might come from a passing feeling of resentment, that the distance of time of the conversation would be such as in Your Honors’ discretion would well warrant, if not compel, the exclusion of the testimony offered. But there is no language that can be stronger than the language used to express a permanent condition of things in that household.”

William H. Moody was a good lawyer, and Robinson still regretted the day the district attorney had asked him to join in the prosecution. Together, Knowlton and Moody would be a formidable pair. Dark-haired and dark-eyed, Moody wore a mustache under his prominent nose and was a stocky, muscular, rather short man, the descendant of a Welsh ironworker who’d settled here in the colonies with his wife and son. A cum laude graduate of Harvard College, he’d been admitted to the bar in 1878, and early on in his career — or so courthouse rumor maintained — had formulated the rule that had since governed his practice of the law: “The power of clear statement is the greatest power at the bar.”

As yet Robinson had seen no evidence of this guiding precept; yesterday Moody’s opening statement for the government had been turgid at best, nor had his just begun argument on Anna Borden’s now disputed and pending testimony been anything but convoluted. Somewhere in his notes Robinson had jotted down the words, “Moody fond of horseback riding and literature.” His task now was to make certain Moody did not ride roughshod over the three judges, however unliterary his argument might be.

“The word home means a great deal in everybody’s mind and everybody’s mouth,” Moody said, “and I submit that where a person states that he has an unhappy home, states it deliberately, states it more than once, it expresses such a continued and existing state of feeling that it is competent, even though it occurred two years before the homicide into which we are inquiring. This is a case not of the expression of feeling toward persons who are brought casually together, but it is the expression of a feeling by one member of a family in respect to the whole family. And continuously a member, because — according to this testimony — there was no absence except this absence in Europe.

“And, of course, after she returned home, she continued always to live in the family up to the time of this homicide. It is to be taken into account, also, with what we know of the feelings of persons who have been absent from home, unless their feeling about the home is firmly hostile and firmly fixed as a hostile feeling, we would hardly expect such a statement as we offer to show was made in this case. I think I have made the ground upon which we offer this clear to Your Honors. Perhaps I have not expressed it so fully or so well as I might do, but I think Your Honors understand precisely what I mean.”

“Mr. Robinson?” Mason said.

Moody took a seat again beside his co-counsel, and watched Robinson closely as he rose and approached the bench. For all his fifty-nine years, the chief counsel for the defense looked exceedingly fit, a tall, deep-chested, clean-shaven man with pale blue eyes and gray hair turning white. His ancestors — like Moody’s own — went back for generations in Massachusetts history, had, in fact, fought in the Revolutionary War battles of Concord and Lexington. It was near Lexington that Robinson had lived as a boy, working on his father’s farm, attending the district school for only three or four months each year. Like Moody, he was also a Harvard graduate, living on a pittance while a student there. That this man — springing from such mean roots and coming to the practice of the law when he was already thirty-two years of age — had come so far so fast was a testament to his determination and an ominous gauge of the sort of opponent he would be in this trial. Moody was not pleased that Robinson had been governor of the state until a scant six years ago; nor did it please him that many still called the man “Governor.”

In a familiar tone, almost as though he were addressing friends and colleagues (as indeed two of them had been and still were, Moody thought) in his own sitting room rather than arguing to the three men who would rule on this matter of law now before them, Robinson said, “Now, of course, we stand upon this statement: that it is altogether too remote. I cannot see how it can possibly fall within the line of the cases permitting such statements to be made. The witness had been abroad, we understand, in Europe, traveling in Europe during the summer. Two ladies together, perhaps more, I am not informed. And as they are coming across upon the ship, this conversation occurs. Now there is nothing in it that anyone would think of offering an objection to, except that her home was an unhappy one. However much we all want to get home after we’ve been abroad a long time, those who’ve had an opportunity to go — a great many have not — but however much we think of that, I presume there’s not a party that has ever gone on a journey that doesn’t say, ‘Well, we’ve had so good a time I really wish I wasn’t going back.’ That’s about all there is of it.

“Suppose she had said, abroad in 1890, ‘My home is unhappy’? Suppose she had said it two or three times with no reference to anybody in person? Is that significant of a state of mind that was operative down through till the fourth of August, 1892? Within the lines of the distinctions made in the case of Commonwealth versus Abbott — which Your Honors must be quite familiar with — it is properly held to be too remote. I do not need to enlarge on this,” Robinson said. “It seems to me it lies right close up to our experience all around.”

The three judges who now conferred all appeared much older than they actually were, perhaps because each of them had white hair and a white beard, perhaps because the heat had caused them all to wilt prematurely on this sweltering June day. The chief justice, Albert Mason, was only fifty-seven years old, a veteran of the Civil War and a former member of the Massachusetts state legislature where he’d worked in committee with the then-senator from Plymouth County — Robinson himself. Although his expression was a somewhat mournful one, his pale eyes were alert. Robinson knew that he had three daughters whose ages were close to Lizzie Borden’s.

Caleb Blodgett of Boston was the senior of the two associate justices sitting with Mason. A graduate of Dartmouth, he had been an expert in bankruptcy law before his appointment to the Superior Court bench eleven years earlier. The unfortunate possessor of a lantern jaw exaggerated by the further thrust of his beard, he rather resembled a belligerent bulldog draped in judicial robes. But for all his fierce demeanor, Robinson knew him to be a genial, unaffected man.

The junior associate justice, a man named Justin Dewey, flanked Mason on the side opposite Blodgett. Dewey was strikingly handsome in a leonine way, with a full head of white hair and a white beard trimmed rather more closely than was Mason’s. He was a graduate of Williams College, a former member of the state legislature, a former state senator, and had been a Superior Court justice for the past seven years now, ever since his appointment in 1886. Robinson knew him well. In fact, it was Robinson who — while serving as governor of the state of Massachusetts — had appointed Dewey to his present position, a lifetime post.

“The Court are of the opinion,” Chief Justice Mason said, “that the character of the testimony offered, the expressions used, are too ambiguous, so that — aside from its remoteness — the evidence is not competent.

“If the expression were distinct of personal ill will to either the father or the stepmother, it might not be too remote.

“We think the evidence should be excluded.”

It had taken a remarkably short time to settle upon the twelve men who would weigh the evidence and deliver the verdict, especially when one considered that virtually all of them examined had formed a prior opinion about the case, and many of the candidates were opposed to capital punishment. On the first day of the trial, Chief Justice Mason had put the identical questions to each of the prospective jurors:

“Are you related to the prisoner, or to Andrew J. or Abby D. Borden?”

“Have you formed or expressed an opinion in relation to this case?”

“Are you sensible of any bias or prejudice in it?”

“Have you formed any opinion that would preclude you from finding the defendant guilty of an offense punishable by death?”

Each side had been allowed twenty-two challenges. The prosecution had exhausted fourteen of them and the defense twenty-two by the time the last juror was selected at three in the afternoon. That first day of the trial had been uncomfortably hot, and the atmosphere inside the courtroom oppressive at best. Lizzie, sweltering in a black brocade dress and black lace hat, had sighed in relief when the twelfth man took his seat in the jury box.

She watched them now as they came back into the courtroom. Most of them were farmers; one of them was a blacksmith. Three of them had similar last names: Wilbar, Wilber and Wilbur. All of them were wearing either mustaches or beards. Her fate, it appeared, would be decided by twelve hirsute jurors and three equally hirsute judges. Somehow she was grateful that Governor Robinson was clean-shaven and that Mr. Jennings’s mustache was somewhat less flamboyant than that of Melvin Ohio Adams, her third attorney, whose name she found almost as preposterous as the adornment over his upper lip. She had fainted yesterday.

She had fainted after Moody’s opening statement to the jury.

The reporter for the Times had written:

As if the swoon had been something entirely within her power to control, and not an honest reaction to Moody’s grisly recitation of the Government’s case against her.

That same reporter was undoubtedly in the courtroom now, she surmised, somewhere among the spectators; his story had not been signed. Neither had the one in the Sun, which still annoyed her because it had described her so unfairly:

All well and good up to that point.

And now it began in earnest:

Well, she had never thought of herself as beautiful. And yet...

Thank God for small favors.

Tailored by a dressmaker!

Antiquated!

Ah, how kind of you, sir.

She had thought while reading the article that the reporter had appointed himself as judge and jury both, deciding from the cut of her clothes, the configuration of her arms and hands, the style in which she wore her hair, the sensitivity of her nose, and the grossness of her mouth, cheeks and chin whether or not she could possibly be a fiend incarnate.

His words bothered her still.

Today, for the first time since the trial began, she had taken a seat closer to her attorneys, to the left and slightly behind them, within the bar enclosure and removed from the prisoner’s dock where she had previously sat alongside the deputy sheriff. She had come into the courtroom today bearing a small cluster of pansies, the petals of which she now idly touched, perhaps because she was determined to express only attitudes the reporters observing her would consider “entirely graceful and womanly.”

There seemed to be more women among the spectators today than there had been previously. She was not certain how she felt about this. Neither was she certain how she felt about the jury being composed entirely of men, most of them beyond middle age. Aware that she was being studied by reporters, artists, spectators and jury alike, she watched now as the next witness was called, fully cognizant of the fact that her very life was hanging in the balance here in this swelteringly hot courtroom in this small New England town.

“What is your full name, madam?”

“Mrs. Hannah H. Gifford.”

“You live in Fall River, do you?”

“Yes, sir.”

“What is your occupation there?”

“I make ladies’ outside garments.”

“That is, by ‘outside’ you mean cloaks? Outside of the dresses?”

“Yes, sir.”

“Had you made cloaks of the ladies of the Borden family?”

“Yes, sir.”

“For how long?”

“Seven or eight years, more or less.”

“Did you do some work for Miss Lizzie Borden in the spring of 1892?”

“Yes, sir, I did.”

“What did you make for her then?”

“A garment. A sack.”

“Did you at any time have any talk with her about Mrs. Borden, the stepmother?”

“I object to that,” Robinson said.

“She may answer,” Mason said.

“Now, Mrs. Gifford, will you state the talk? What you said, and what she said?”

“I was speaking to her of a garment I had made for Mrs. Borden, and instead of saying ‘Mrs. Borden,’ I said ‘Mother.’ And she says, ‘Don’t say that to me, for she is a mean, good-for-nothing thing.’ I said, ‘Oh, Lizzie, you don’t mean that.’ And she said, ‘Yes, I don’t have much to do with her. I stay in my room most of the time.’ And I said, ‘You come down to your meals, don’t you?’ And she said, ‘Yes, but we don’t eat with them if we can help it.’ And that is all that was said.”

My name is Nathaniel Hathaway, and I reside in New Bedford. I’m an analytical chemist. I was educated as such at the School of Mines in New York. Columbia University. I’ve been practicing my profession since 1879, and I’ve often had occasion to be called as a witness in matters involving it.

I am acquainted with the nature and uses of drugs, and I am acquainted with the drug called hydrocyanic or prussic acid in its diluted form. What is called the two-percent solution. What is known as prussic acid in commerce. When we’re speaking of commercial prussic acid, I can only say it’s quite volatile, very volatile. I can’t give any ratio or degree of volatility. In that volatile form, if distributed in the air upon a person in the vicinity of it, it would cause headache and nausea. It passes off in the air, you see, like a number of other liquids. Ammonia, for one. Hydrochloric acid for another, a strong acid, sometimes called muriatic acid. And benzine.

I’m a family man, I have a house, but I’ve never used benzine for cleansing purposes, except for taking out spots or removing grease. Benzine would be destructive to small animal life, bugs, flies, moths, all those things would go. They’d either emigrate or die. Ether would probably cause death to insects, too. All those creatures. The same is true of chloroform and naptha. They’re all volatile. Their volatility renders them unsuitable for such use, and yet they’re used that way right along in everyday life. All of those articles.

As another example, arsenic is an ingredient of the common article known as Rough on Rats. Something that’s very commonly used in households to dispose of rats. Well, I would rather have the rats than have such stuff about my house. I think we’re all going wrong in using those poisons that’ll kill rats. Because somebody may get it by accident into his own stomach, or find a chance to use it criminally. It’s a dangerous commodity to have in the house, arsenic.

As for prussic acid, what is known as the two-percent solution, you could mix it with water or mix it with alcohol, you could dilute it a hundred times more, until it contained two hundredths of a percent. But as to whether or not that would kill a piece of animal life on a fur, it would be impossible for me to say without experimenting on it. I have used the two-percent solution, tried its effects on insects. It’ll promptly kill them. But whether any greater dilution would accomplish the result, I don’t know.

I tested the effect of prussic acid upon insect life between last night and this morning, took the common prussic acid used in commerce, the two-percent solution, and tried that. On ants. No difficulty about killing them and various nondescript bugs. Unfortunately, I’m not a naturalist — I can’t tell what the various small insects I used were. I remember some spiders.

But to my knowledge, prussic acid in any form is not used for the purpose of cleaning furs.

In my opinion, it’s unsuitable in connection with furs.

It has no suitability or adaptability for use in cleaning furs.

“What is your full name?”

“My name is Eli Bence.”

“Do you live in Fall River?”

“I do.”

“What is your occupation?”

“I’m a drug clerk.”

“For whom do you work?”

“For D. R. Smith.”

“Where is Mr. Smith’s shop?”

“On the corner of South Main and Columbia Streets, in Fall River.”

“How long have you been connected with that business?”

“Something between thirteen and fourteen years.”

“How long have you been employed by Mr. Smith?”

“Something over four years now.”

“And always at the same place?”

“For Mr. Smith, yes, sir.”

Robinson leaped to his feet.

“May it please Your Honors,” he said, “there’s a question here that we consider of vital importance, and I believe the Commonwealth also recognizes it as of that character. This inquiry, I suggest, ought to stop here, and the question be discussed with the Court alone.”

“There are certain preliminary things and characteristics,” Moody said, “that are to be considered, that we want to prove. Perhaps, however, if it would suit the convenience of the other side, we could state what we expected to prove upon that subject better.”

“I’m speaking of this evidence,” Robinson said, “when there’s any question about it. It’s deemed important to both sides, and it’s important for the Court to consider and pass upon it.”

“That’s entirely in the hands of the Court,” Moody said. “We wanted to prove, however, one or two preliminary things, not at all turning in the direction of the prisoner.”

“I understand what the question is,” Robinson said, “and I say that it isn’t quite the statement that should be made — because it really involves and touches this case somewhat.”

“I’m entirely content to state it,” Moody said.

“I think you’d better not state it now,” Robinson said.

“No, I understand. I’m entirely content to state it upon the argument to Your Honors.”

“It’s nothing that ought to be stated now,” Robinson insisted.

Chief Justice Mason looked at both men.

“The jury may retire with the officer and remain until sent for,” he said. “The witness may return downstairs.”

Lizzie sat in the airless courtroom and watched Bence and the jurors filing out. Was it only her imagination that Bence tossed a look at her over his shoulder as he departed? She recalled suddenly the words Knowlton had put to her in Fall River last year, recalled her own answers as vividly as if the exchange were taking place here and now:

“Your attention has already been called to the circumstance of going into the drugstore of Smith’s on the corner of Columbia and Main Streets — by some officer, has it not? — on the day before the tragedy.”

“I don’t know whether some officer has asked me. Somebody has spoken of it to me. I don’t know who it was.”

“Did that take place?”

“It did not.”

“Do you know where the drugstore is?”

“I don’t.”

“Did you go into any drugstore and inquire for prussic acid?”

“I did not.”

Her own attorneys had asked her these same questions over and again. She had repeatedly told them that she had not gone to any drugstore in Fall River or anyplace else and had made no attempts to buy prussic acid or any other sort of poison on the day before the murders. Her attorneys knew the government had witnesses who claimed they could identify her as the woman who’d made the inquiries for prussic acid. In the end Robinson had felt it best — considering the danger such patently mistaken identification might present — to argue for exclusion of the testimony once the matter came up in court.

It had come up now.

It was fully upon them now.

She leaned forward intently as Moody began speaking.

“I perhaps ought to state what the testimony is that we offer,” he said. “We offer to show that prussic acid is not an article in commercial use, that it is an article which is not sold except upon the prescription of a physician and as a part — a minute part — of a prescription. That this witness during his experience as a drug clerk, up to the third of August, 1892, never had a call for prussic acid. That it is not used for the purpose of cleaning capes — sealskin capes, or capes of any other sort — and has no adaptability to such use.

“We now offer to show that upon the third day of August, sometime in the forenoon, the time of which isn’t material, the prisoner came to this shop in which the man was employed and asked for ten cents’ worth of prussic acid, stating that she wished it for the purpose of cleaning capes — either sealskin capes, or capes, I’m not sure which — and that she failed to procure the poison for which she asked. Perhaps I ought to state it with some accuracy,” Moody said, and went to the defense table where his co-counsel sat. Knowlton immediately handed him the document he was seeking, and Moody approached the bench again.

“These are Mr. Bence’s exact words,” he said, and began reading from the typewritten sheet of paper in his hands. “This party came in there, and inquired if I kept prussic acid. I informed her that we did. She asked me if she could buy ten cents’ worth of me. I informed her that we did not sell prussic acid unless by a physician’s prescription. She then said that she had bought this several times, I think. I think she said several times before. I says, ‘Well, my good lady, it’s something we don’t sell unless by prescription from the doctor, as it’s a very dangerous thing to handle.’ I understood her to say she wanted it to put on the edge of a sealskin cape, if I remember rightly. She left without buying anything, no drug at all, no medicine.”

Moody looked up from the typewritten sheet.

“Then follows merely the identification of the prisoner by Mr. Bence,” he said. “I don’t know in what way Your Honors desire to hear the discussion.”

“Perhaps we’d better hear the objection,” Mason said.

Robinson, sitting at the defense table with his co-counsels, did not rise for a moment. Lizzie looked at him expectantly, wondering why on earth he didn’t immediately spring up. Jennings, on his left, who had been her father’s attorney at the time of the murders, and who had been called into the case from virtually the very beginning, handed Robinson a sheet of paper, which he glanced at and then nodded.

Sitting on Robinson’s right, Melvin Ohio Adams leaned over to whisper something in his ear. Adams might have been considered handsome, Lizzie thought, were it not for his ridiculous waxed mustache. He was forty-two years old, a graduate of Dartmouth College who’d met Jennings at Boston University while both men were studying law there. A resident of Boston, Adams had been district attorney for that city until seven years ago, and both her other attorneys had assured her he would be a valuable asset in their cause.

He seemed to whisper for an eternity. Robinson listened, nodded again and — still not rising from his chair — turned to Moody and said, “I understand that the offer doesn’t include facts to show that there was any sale.”

“No, sir,” Moody said.

“And — we perhaps may anticipate — but I believe it may be fair to ask whether there is any evidence of any sale to this defendant?”

“No, sir.”

“In any other place?”

“No, sir. It would be fair to say we have evidence to show some attempt to purchase prussic acid in another place, with the same negative result.”

“You propose to bring evidence upon attempts, but no success.”

“Yes, sir.”

“Well,” Robinson said, and rose at last to approach the bench. “It appears that the stomachs of the deceased persons showed no traces of any poison whatever. Certainly not any prussic acid. So there is shown no connection as assailing the lives of those two persons. Lizzie Borden is charged in the indictment with slaying or killing those two people with a sharp instrument; committing the murder with an ax, for instance. Nothing else. Now here, if it has any force at all, suppose it were carried away up to its legitimate result? It is an attempt to charge her with an act causing death by a wholly different means — for which, of course, she is not now on trial. It must be shown, I maintain, that any act which is to be put in evidence on the part of this defendant must have some natural tendency to show that she has committed the act for which she stands on trial.

“To my mind, it does not show that. It is an attempt to buy an article which is used for other purposes. It is said that it is an article that is not used in the arts, but it is an article which a person may legitimately buy. Its sale is provided for under the statute, and it is not to be said that because a person may wrongfully use, in a distinct transaction, an article which he purchases, therefore its purchase has a tendency to show that he has committed some other crime for which he is indicted. Does it have any tendency at all to show that this defendant killed those two persons with an ax? I maintain it does not. I must say I have said all the Court desires to hear, and I have made my meaning, I trust, plain.”

“Mr. Moody,” Mason said, “the Court desires to have restated the limitations or purpose for which the testimony is offered.”

“There is no purpose of offering this testimony for any other use than as bearing upon the state of mind of the defendant prior to the homicide — the intent, the deliberation, and preparation. And for that, or any part of it which Your Honors may suggest it has a natural tendency to prove... we offer it.”

“We will withdraw for consultation,” Mason said.

Robinson smiled.

Lizzie saw the smile and read it to mean that her attorney felt confident about the judges’ eventual ruling; Eli Bence, the druggist, would not be allowed to continue with his testimony.

Idly she plucked a withering pansy from the cluster she held in her lap.

Her face showed no expression whatever.

My name is Alice M. Russell, and I live in Fall River. I don’t know how long I’ve lived here. A good many years. I’m unmarried, used to live in the house now occupied by Dr. Kelly, lived there just eleven years. During all that time, the Bordens occupied the house just north. I was well acquainted with all of the family — Mr. Borden, Mrs. Borden, Miss Emma Borden and Miss Lizzie Borden. I occasionally had calls from Lizzie, and I went to her house as well. Whenever I called at her house, she received me upstairs, in what’s called the guest room, used it for a sitting room while I was there.

On Wednesday night, August third, of last year, Lizzie Borden came to visit me. I’m not sure what time it was, I think about seven. Sometime in the evening. She came alone, as far as I saw, stayed with me until nine, or five minutes after, as near as I know. We talked together about various subjects. I think when she came in she said, “I’ve taken your advice, and I’ve written to Marion that I’ll come.” I don’t know what came in between, I don’t know as this followed that, but I said, “I’m glad you’re going,” as I’d urged her to go before...

“Be kind enough to speak a little louder, if you can,” Robinson said.

“Shall I repeat that?”

“If you please. Because I didn’t hear it.”

... I said, “I’m glad you’re going.” I’d urged her before to go, and I didn’t know she’d decided to go. I said, “I’m glad you’re going.” And I don’t know just what followed, but I said something about her having a good time, and she said, “Well, I don’t know, I feel depressed. I feel as if something was hanging over me that I can’t throw off, and it comes over me at times, no matter where I am.” And she said, “When I was at the table the other day, when I was at Marion, the girls were laughing and talking and having a good time, and this feeling came over me, and one of them spoke and said, ‘Lizzie, why don’t you talk?’ ”

I don’t remember of any more conversation about Marion. Whether there was or not, I don’t remember. The conversation went on, I suppose it followed right on after that. When she spoke again, she said, “I don’t know, father has so much trouble.” Oh, wait, I’m a little ahead of the story. She said, “Mr. and Mrs. Borden were awfully sick last night.”

And I said, “Why? What’s the matter? Something they’ve eaten?”

She said, “We were all sick. All but Maggie.”

“Something you think you’ve eaten?”

“We don’t know. We had some baker’s bread, and all ate of it but Maggie, and Maggie wasn’t sick.”

“Well, it couldn’t have been the bread,” I said. “If it had been baker’s bread, and all ate of it but Maggie, and Maggie wasn’t sick. If it had been baker’s bread, I should suppose other people would be sick, and I haven’t heard of anybody.”

And she said, “That’s so.” And she said, “Sometimes I think our milk might be poisoned.”

“Well,” I said, “how do you get your milk? How could it be poisoned?”

“We have the milk come in a can,” she said, “and set on the step. And we have an empty can. They put out the empty can overnight, and the next morning when they bring the milk, they take the empty can.”

“Well, if they put anything in the can,” I said, “the farmer would see it. What time does the milk come?”

“About four o’clock.”

“Well, it’s light at four. I shouldn’t think anybody would dare to come then and tamper with the cans. For fear somebody would see them.”

“I shouldn’t think so,” she said. “They were awfully sick, and I wasn’t sick, I didn’t vomit. But I heard them vomiting and stepped to the door and asked if I could do anything, and they said no.”

I think she told me they were better in the morning, and that Mrs. Borden thought they’d been poisoned, and went over to Dr. Bowen’s — said she was going over to Dr. Bowen’s. And... I can’t recall anything else just now. Of course she talked about something else, because she was there two hours, but I can’t think about it. Well, about trouble with tenants, yes.

She said, “I don’t know, I feel afraid sometimes that father’s got an enemy. He has so much trouble with his men that come to see him.” And she told me of a man that came to see him, and she heard him say — she didn’t see him, but heard her father say — “I don’t care to let my property for such business.” And she said the man answered sneeringly, “I shouldn’t think you’d care what you let your property for.” And she said her father was mad and ordered him out of the house.

She told me of seeing a man run around the house one night when she went home, I’ve forgotten where she’d been. “And you know the barn’s been broken into twice,” she said.

And I said, “Oh, well, you know that was somebody after pigeons. There’s nothing in there for them to go after but pigeons.”

“Well,” she said, “they’ve broken into the house in broad daylight, with Emma and Maggie and me there.”

“I never heard of that before,” I said.

“Father forbade our telling it,” she said.

So I asked her about it, and she said it was in Mrs. Borden’s room, what she called her dressing room. She said her things were ransacked, and they took a watch and chain and money and car tickets, and something else, I can’t remember. And there was a nail left in the keyhole, she didn’t know why that was left. I asked her if her father did anything about it, and she said he gave it to the police but they didn’t find out anything. And she said her father expected they would catch the thief by the tickets, “Just as if anybody would use those tickets,” she said.

“I feel as if I want to sleep with my eyes half-open,” she said. “With one eye open half the time. For fear they’ll burn the house down over us. I’m afraid somebody will do something. I don’t know but what somebody will do something,” she said. “I think sometimes, I’m afraid sometimes, that somebody will do something to him, he’s so discourteous to people. Mrs. Borden told him she was going over to Dr. Bowen’s, and father said, ‘Well, my money shan’t pay for it.’ She went over to Dr. Bowen’s, and Dr. Bowen told her — she told him she was afraid they were poisoned — and Dr. Bowen laughed and said No, there wasn’t any poison. And she came back, and Dr. Bowen came over. I was so ashamed, the way father treated Dr. Bowen. I was so mortified.”

That’s all I can remember about our talk on the night before the murders.

My name is Martha Chagnon, I live on Third Street. My yard’s right in the rear of the Borden yard. There’s a fence between my yard and the Borden house, and a corner there where there’s a doghouse. On the night preceding the Borden murders, I heard a noise...

“Can you fix the time a little better?”

“It was about eleven o’clock at night.”

“Won’t you tell what you heard,” Jennings said. “What the noise sounded like?”

“Wait a minute,” Knowlton said. “I pray Your Honors’ judgment about that.”

“She may describe the noise,” Mason said.

“Please describe the noise,” Jennings said. “Tell us about it as well as you can.”

“Well, I couldn’t describe the noise, because I didn’t see it.”

“Well, you don’t often see a noise, do you?”

“Why, no, sir.”

“How it sounded to you,” Jennings said.

“Wait a minute, I object to that,” Knowlton said.

“That’s a proper question,” Mason said. “It calls for a description of how it sounded.”

... Well, the noise sounded like pounding. Like pounding on wood. On the fence. Or a board. It came from the direction of the Borden fence, somewhere along the line of the fence. It continued for about four or five minutes. I didn’t go outdoors to see what it was. I didn’t do anything to investigate the cause of the noise. I was in the sitting room downstairs, on the south side of the house. There’s a room between that and where the noise appeared to be. The dining room. The dining room was between me and where the noise appeared to be. My stepmother was with me when I heard the noise. I don’t remember whether she looked to see what had occasioned it. We couldn’t see out from where we were to the back part of the yard. It was too dark, and the curtains were down.

I’d been away all that day, went off at eight o’clock in the morning, to Providence. I got home at about six o’clock. My stepmother hadn’t gone with me, but she was in the room when I heard the noise. Her name is Marienne. Marienne Chagnon. She was in the room at the same time I was. The windows in that room were all shut. There are three of them in that room, and one of them faces east, onto the piazza. The other two face south. I can’t tell how I knew the direction from which the sound came. It was nothing more than an impression. I couldn’t say positively that the sound came from over the fence, but in that direction. I didn’t go out of the room, and I didn’t look out the window, either. I simply heard a noise, and it sounded to me as if it had come from that way.

There’s an icehouse, the next house but one to ours. But the sound didn’t come from the icehouse direction, it wasn’t from the icehouse, it wasn’t in that direction. There was a dog on the premises. On the piazza. He didn’t leave the piazza at any time when that noise was going on.

My name is Marienne Chagnon, and I live on Third Street in Fall River. My house is in the rear of the Borden house. On the evening before the murders, I was home, and something attract my attention. About eleven o’clock. Some noise. I would describe it as the sound of steps on wood. On a wood sidewalk. Or on a fence. There is a fence between our yard and the Borden yard. And a doghouse there at the corner. At the time I heard the noise, I was on the sofa in the sitting room, on the south side of the house.

I heard the noise coming from the back yard. Near the window of the dining room. We heard the noise and we thought that noise would be — I don’t speak very well — would be the same on the fence as on a wood sidewalk. There’s a short fence between Mr. Borden’s yard and our house. I heard the noise like it was a step on the fence. It lasted about five minutes, with space between the noise. We heard some noise, and after — we wait, and we heard noise again. There was a space of two or three minutes between the noises. I tell to my daughter, because I don’t wonder that she was afraid, I didn’t think it was the sound of a dog. The dogs sometimes come into our yard, I have seen them. I have an ash barrel in the yard, and it sometimes contains bones. And sometimes dogs come to that ash barrel. But...

“Did the noise sound to you like pounding?” Knowlton asked.

“What is it?” Mrs. Chagnon said.

“Did the noise sound to you like pounding?”

“Like?”

“Pounding.”

“I don’t understand that expression.”

“Pounding?”

“No, sir.”

“Don’t you understand what pounding is?”

“Pounding?”

“Yes.”

“No, sir.”

“What?”

“No, I don’t understand it.”

“Don’t know that word?”

“No, sir, pounding.”

“All right, I can’t put the question,” Knowlton said. “You don’t understand the word pounding?”

“No, sir.”

“To pound,” Knowlton said.

“Pounding?”

“Yes.”

“No.”

“All right. Do you remember of seeing the dogs there at the ash barrel at anytime afterwards?”

“We have since seen some dogs sometimes taking some bones in the barrels.”

“And do you remember of your husband pounding that dog one time... excuse me... moving that ash barrel at one time?”

“I don’t understand.”

“What?”

“I don’t understand.”

“Do you remember of Mr. Harrington, the officer, being there one day?”

“Yes, sir.”

“And your husband made a noise with that barrel?”

“Yes, sir.”

“And didn’t you say that it sounded like the noise you’d heard?”

“Yes, sir, but...”

... It wasn’t in the same direction. It was the same noise but I tell to my husband it isn’t in the same direction. It was nearly the noise. But that night the ash barrel was in the barn. In the back yard. It was in the barn that time. The noise of the ash barrel was about that noise, but it was not in the same direction. To make that noise with the ash barrel, my husband strike the barrel near the... the little barn, and he said, “Is it not that noise you heard?” I tell, “Yes, perhaps it is so, but it seems to me it was not in this same direction.” He strike the barrel with his hand. And when he strike the barrel with his hand, it seems like the same noise that I heard.

Because it sounds on the wood like that.

My name’s Charles N. Gifford. I work at C. E. Macomber and Company, the clothing store, and I live at 29 Third Street. That’s the house next north of the Chagnons. Uriah Kirby lives there, too. I was there at the house about eleven o’clock on the night before the murders.

I saw a man on the steps, the steps leading into the yard, right there on the side steps. The man, I should judge, weighed between a hundred and eighty to ninety pounds, and he sat there on the steps, apparently asleep, with a straw hat pulled over his face. I took hold of his arm and shook him, and in shaking him his hat fell off onto the sidewalk. I lit a match and held it up in front of his face to see if I knew who it was, and found that I didn’t. I know most of the people living in that vicinity, I’ve lived there — with the exception of twelve years — about thirty-one years. In that same house, my father’s house. I didn’t smell any liquor about him, got no response from him whatever, don’t know what became of the man. I went into the house and left the hat on the sidewalk. A few minutes afterward, Mr. Kirby came by...

My name is Uriah Kirby, I live in Fall River, on Third Street. The house next north of the Chagnons. I was living there on the third day of August last year. When I went home that night about eleven o’clock, there was a man sitting on the steps, four stone steps leading from the sidewalk which reached up into the yard.

I spoke to him, hollered out to him, spoke loud. No reply. Sat there dormant, as it were, in about the middle of the step, I should think, either the second or third. There was four steps in all, and he was back in this form, laid back against the side of a little fence that ran there, with his hat pulled down nearly over his eyes, and sitting there very quietly. Didn’t seem to move at all, paid no attention to my voice. I put my hand on his hat, on top of his head, and shook him in this form, and spoke again to him. No reply.

I didn’t take hold of him on any other portion of the body except the hat. It was a dark hat. Didn’t smell any signs of liquor on him. He said nothing, did nothing, couldn’t seem to arouse him. These steps are some fifteen to seventeen feet from the Chagnon driveway, just south of the steps there. I left him there, and went into my house. Mr. Gifford had already retired.

That’s all that took place that night.