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DIE IS CAST.
Continued from the First Page.
...gance of diction, and presented the evidence for the prosecution to the jury in a clear and concise manner.
When the attorney-general had been speaking about an hour, and had commenced to deal with that part of the testimony bearing on the disappearance of Tena Davis Trefethen showed very visible signs of weakening, as a result of the terrible ordeal he was undergoing. With downcast eyes and flushed countenance he gazed on the railing of the dock in front of him, never once raising his eyes and not appearing to be conscious of anything passing around him.
When the attorney-general uttered the words, “Tena Davis died,” he awoke with a start, opened his eyes, and for a few moments followed the argument, but again relapsed into an apparently comatose condition.
The shadows were lengthening, and the court room growing dark, objects were but dimly visible within, when shortly before 5 o’clock the lights were turned on and seemed to bathe in a weird and sickly light the dock and its unfortunate occupants.
A few feet from the entrance to the dock sat the widowed mother of Tena Davis, kindly and gentle-looking, in spite of her suffering, drinking in with sorrowful interest the recital of the woes of her daughter.
Before the attorney-general had concluded, the court rose.
John O’Callaghan.
LAST EVIDENCE IN CASE.
Several of the Witnesses Recalled and Subjected to Questioning.
When the court came in at 9 o’clock yesterday morning, Thomas Cox was called to the witness stand, and proceeded to testify to an accident that happened at the East Boston ferries several years ago, whereupon Attorney-General Pillsbury objected to the admission of the testimony.
The court ruled that the evidence might be given, and Cox continued:
“There were five persons drowned at that time, and there was a reward offered for the recovery of the bodies.
“I was one of the parties who found one of the bodies, and I received part of the reward.
“I found the body while rowing in a boat on the Mystic river about 250 yards from the Boston & Maine railroad bridge, near Malden, somewhere near the present Wellington bridge.”
Cross-examined by the attorney-general:
“To the best of my recollection it was between 1854 and 1858.”
“Was it a child or an adult?”
“An adult; a lady.”
“How old was she?”
“About 30 years of age.”
“How was she dressed?”
“In a black silk dress; very fashionably dressed.”
“What time of year was it?”
“Some time in the summer, or early in the fall.”
Dr. Thomas M Durell, recalled, testified in reply to Gov. Long, that excitement would produce considerable effect on the digestion of food.
John F. Molony[sic] testified: “I am 28 years old, and a driver for the West End street railway.
“On the night of Dec. 23 I attended a meeting of the Pioneer Federal Labor Union at 45 Eliot st. It was late when we broke up, and with a Mr. Cantlin rode down to the Tremont House, and then went to Scollay sq. and down to Washington st., where we took a herdic to Medford. It was then about 2 o’clock in the morning.
“When we got out near the junction of Middlesex av. and Mystic av., about 3 o’clock, I called my friend’s attention to lady walking on the sidewalk. As the herdic passed her
She Turned Her Head
aside. She was dressed in a longdark dress, and wore a swell hat or bonnet on her head,
“When we came to the junction of Middlesex av. and Mystic av. the driver did not know which way to go, and I got out to show him. As I did so the lady came up on the farther side of the street, and continued on towards the Wellington bridge on Middlesex av. She was gone about 100 feet from the junction of the two avenues when we lost sight of her.”
Cross-examined by the attorney-general:
“She was 12 or 15 feet away from us on the sidewalk. She was very small.”
“When did you first know you were to be a witness in this case?”
“yesterday, I wrote a letter to Gov. Long, and I received a summons from a constable to attend.”
Thomas J. Cantlin, who rode with Mr. Moloney on the night in question gave corroborative evidence, as follows:
“When we were passing the lady near Middlesex av. and Mystic av. she turned her head and looked towards the marsh. She was, perhaps, five feet or may be a little less. She wore a bonnet or something close-fitting on her head, and a long cloak or garment.
“After the herdic stopped and the woman had passed along, we drove on again, and when we lost sight of her she was probably along 125 feet or so on Middlesex av.”
Cross-examined: “She was on the right side of the street.”
Frederick H. Temple, a member of the Suffolk bar; Margaret A. Town, Everett; William H. Fessenden, Columbus Corey, J.R. Ainsley, who works for Brown, Durell & Co., John A. Nicholson, Albert S. Pratt and ex-Senator Edward B. Wilbur testified that they had known Trefethen for a number of years and he bore an excellent character.
Mr. Coggan at 10 o’clock announced that the testimony for the defence was all in, but he wished to make a statement under oath.
Mr. Coggan Was Then Sworn.
and said that the testimony of Officer Brown as to the conversation between counsel and Trefethen in the Malden court on the day of the first hearing was not correct.
“Neither then nor at any other time did Trefethen tell me that he had seen Tena Davis on the 23d of December, after he had seen her in the morning.
‘He always denied having seen her later than that morning.”
His honor ruled the answer out.
Cross-examined by the attorney-general:
“You know, Mr. Coggan, did you not, that under the law I could not cross-examine you when you went on the stand?”
“Yes, sir.”
The attorney general – “That is all.”
This closed the case for the defence.
Officer Kelly was recalled for the government and he testified that on the night of the fire at which he and Farnum were present, both were together when the alarm rang from box 64, and started to run to the fire. Farnum stopped after they had gone some distance, and witness continued on, and on his return met Chief Richards, and later on Officer Farnum going towards the fire.
Dr. Durell, recalled, testified that bodies found in the Mystic river are almost invariably found to have fractured skulls, broken arms, or broken legs, from coming in contact with the bridges.
“Do not believe that the body could have gone through the bridges or any of them without showing some marks of having done so; in fact, it seems to me that her body never floated.”
Mrs. Davis recalled, testified that Tena had not left home on the forenoon of Dec. 22, and was at home till about 3 o’clock in the afternoon.
“Did not see Trefethen at the house on the morning of Dec. 23. I slept with her always.”
This closed the testimony on both sides, and a recess was taken.
POINTS FOR RULINGS.
Eleven Questions Submitted to Judges by Counsel for Defence.
While the jury was out for exercise at the recess of the morning session of the court, ex-Gov. Long submitted a series of rulings, which he desired to have made in the case, the points in which are as follows:
In order to sustain the indictment the Commonwealth must prove that the deceased, Deltena J. Davis, was murdered: and the evidence produced for this purpose must be so clear and convincing as to exclude beyond reasonable doubt the supposition that she came to her death by accident or by suicide.
If the jury shall be satisfied that the deceased was murdered, the Commonwealth must also prove as a distinct and additional proposition that the murder was committed by the defendants or one of them; or, under the last count of the indictment, that the defendants hired some unknown person to commit murder.
The evidence offered in this case being wholly circumstantial, the jury should use great care and caution in drawing inferences from proved facts. The inferences should be fair and natural and not forced or artificial conclusions. The jury being sole judges of the credibility of witnesses and of the weight to be given to their testimony, are not bound to find a certain fact to be true, merely because it is testified to by one or more witnesses. If the jury are satisfied, either because a witness has been impeached, or for any other reason, that he does not testify to the truth, they may reject his testimony and refuse to find the facts as sworn to by him, even where there is no contradictory testimony on the same matter.
Each separate fact in the chain of circumstances necessary to the final conclusion that the defendants are guilty must be proved by competent evidence and by the same weight and force of evidence as if it were itself the main fact in issue. That is,
Each Fact Must be Proved
beyond a reasonable doubt. If the proof of any one necessary fact in the chain of circumstances fails to come up to this requirement, then the case of the Commonwealth fails, and it will be the duty of the jury to return a verdict of acquittal.
All the facts relied upon by the Commonwealth must be consistent with each other, and must also be consistent with any facts and circumstances set up in behalf of the defendants, which the jury believe to be true. For example: If the jury are satisfied that the defendants, or either of them, on the night of the final disappearance of Miss Davis were at a place where they could not have had any part in causing her death, that would be a fact inconsistent with and repugnant to the case of the Commonwealth.
The burden is upon the Commonwealth to prove all the facts necessary to a conviction beyond a reasonable doubt. Some of the evidence introduced in behalf of the defendants sets up the defence known as an alibi; that is, that the accused at the time of the offence was committed were elsewhere. The defendants are not obliged to prove by a preponderance of evidence that they were elsewhere, but on the contrary the burden is on the Commonwealth to prove beyond a reasonable doubt that they were at the scene of the crime or where they could have committed the crime; and if upon the whole evidence there is a reasonable doubt in the minds of the jury upon that point it will be their duty to return a verdict of acquittal.
7. If all the facts which the Commonwealth seeks to establish are proved beyond a reasonable doubt, and if they are accounted for and reasonably explained upon any theory which does not include the guilt of the defendants, it will be the duty of the jury to adopt that theory and explanation and to return a verdict of acquittal. For example: If all the facts proved by the Commonwealth can be reasonably explained upon the supposition that the deceased
Deltena J. Davis Committed Suicide,
it will be the duty of the jury to adopt that explanation. It is not necessary that the theory of suicide should be more fallible than the theory that she was murdered, or even equally fallible. If it is a reasonable explanation of the facts it is sufficient for reasonable doubt upon the case of the Commonwealth and to require an acquittal.
One of the disputed questions in this case is the authorship of the anonymous letter. The evidence of experts in handwriting has been introduced by the Commonwealth, who testified that in their opinion one of the defendants, J.A. Trefethen, wrote this letter. The jury are not bound nor controlled by the opinion of the experts upon that question, but are to weigh and consider their testimony and give to it such value only as they deem it entitled to have. Expert testimony upon the subject of handwriting, based upon a comparison of hands, should, from the nature of the subject, be considered by the jury with great caution, especially in a capital case. If, upon all the evidence, there is a reasonable doubt in the minds of the jury that the defendant, Trefethen, wrote the letter in question, it will be their duty to find that fact in his favor and against the Commonwealth.
Evidence of the conduct of the defendants after the disappearance of the deceased and after their arrest is relied upon by the Commonwealth. But evidence upon this point is not to be pressed too urgently, because an innocent man, when placed by circumstances in a position of suspicion and danger, may resort to deception in avoiding the force of such proofs.
Good character should be considered by the jury in coming to their decision, and if by reason of the good character of the defendants, or either of them, a reasonable doubt is raised in the minds of the jury as to their guilt it will be the duty of the jury to acquit.
The Commonwealth has no right to interrogate a person accused of crime and compel him to testify, but must sustain its charge by independent testimony. The accused has a right to simply deny his guilt by his plea of “not guilty” and to rely upon the legal presumption of his innocence until he is proved to be guilty. No inference can be drawn against the accused from the fact that they do not testify.
EX-GOV. LONG’S ARGUMENT
Clear, Concise, Vivid at Times in His Review and Pleading.
Ex-Gov. John D. Long, counsel for the defence, after the recess, delivered his argument. It was a clear, concise summing up, and at times he was vivid in his portrayal of scenes.
He said in substance, in addressing the jury:
The day before you took your seats on this panel you heard of the discovery of the body of Mr. Edgell, an official of many years standing in the Senate of the State, a brave old soldier, whose body was found in the Charles river.
As you remember, there were no evidences of violence, no suggestions of murder.
Everybody accepted it as a matter of suicide; and the tears of those who loved him and the respect of those who knew him have followed him to his grave, as one who, under some aberration of mind, though for years and years a trusted, capable and high-minded official, took his own life at last.
Now, suppose that all that you have been hearing in the last 10 days with regard to Tena Davis had been heard solely with reference to the suggestion of her suicide; that her body had been found in the Mystic river, not the Charles; that there were no marks of violence upon her, nothing to suggest that any other hand than her own had had to do with her death.
How simple, how natural, how consistent, every circumstance that appears in this case and that has been testified to before you would have been with the theory of her suicide.
It would have occurred to nobody on your panel or in the length and breadth of the land to have doubted that a poor girl, before that standing well enough in the community, under the terrible pressure of pain and shame that was upon her, had done what so many unfortunates have done before her, and had met with death by her own hand.
Remember, gentlemen, that all this time, instead of looking at it in that way, we have been dealing with this as if we started with the theory that that poor girl had been murdered, and all this time our minds have been kept in the same relation in which they would be if it was accepted to begin with that there were a murder, and we were trying to reconcile these facts which have come out with a murder.
Now, the fact that this case might have been submitted to you, I believe, just as well when the prosecution had finished their testimony as it may be submitted to you now; submitted to you without argument, without one word being put in by all these defendants’ witnesses, although they have entirely changed the color and attitude of the case. Why? Because the government itself in putting in their case had put in the
Repeated and Continued Denials
not only of these defendants – they have given us their testimony in full, their statement of their situation, their statement of what they were doing, their explanation of their conduct, and at the close the government had failed to prove the two things which are essential to this case, and those two things are these. Think, gentlemen, am I not correct?
Take it deep in your own minds.
Isn’t it true that at the close of the government case, as today, there has been no proof at all that a murder was committed?
Not one particle, not one scintilla of evidence has gone before you that that girl met her death by any other hand.
Where is the evidence that the girl was murdered?
Where is the hand that struck her?
Where is the man that pressed her over the bridge?
From first to last, tell me where you find the slightest trace of evidence that any murder at all has been committed.
A body found without a mark, not even a mark that comes from rubbing on the ground, where it had been lying in the ooze, the soft ooze of the river.
Nothing but the natural discoloration that comes from the beginning of decomposition of the body. Is there any evidence of murder at all?
And, second, there is no evidence that these defendants, or either of them, ever were connected with the disappearance of that girl.
If she came to her death by another hand than her own, not one particle of testimony from beginning to end has been put in here to show Trefethen took part in her murder, or that Smith took part in her murder, or that any human being with or without their knowledge, took part in her murder. You might leave your seats at once with a verdict of not guilty, on the simple ground that there is not any evidence at all that a murder has been committed.
But we have to do our duty, gentlemen.
Our duty is, as officers of the court, to put in the testimony of the defence, to delay and weary you with an argument upon it, and to state our case, just as it is the duty of my friend on the other side to state his.
In a criminal case, especially in a capital case, where a man’s life is at stake, you have got to find that you are satisfied beyond a reasonable doubt of the guilt of these men, and you have got to find beyond a reasonable doubt not only generally but every particular fact that is necessary to the case.
In every link in the chain
You Must be Satisfied
beyond a reasonable doubt.
And I undertake to say that you not only have reasonable doubts with regard to their guilt, but that you have not any doubt at all that the case has not been proved against them.
Circumstances and trifles light as air being exaggerated and looked at in a wrong point of view, frequently mislead.
Then there is unreliable testimony, testimony which is given under a mistake. You have had a good deal of it in this case.
You and I would not say that Mr. Emerton and Mrs. Davis were perjurers. They are not. And yet Mr. Emerton told you that he deliberately stated a falsehood to these young men when they came to him.
The young men wanted to know if Mrs. Davis had received a letter, and over and over again, as many times as Peter repeated the falsehood, he said no.
Mrs. Davis, this good old lady, of whom none of us would speak without respect, herself told them a falsehood. They asked her if she had received a letter, and she said no, because she had been told not to mention it.
Sullivan came upon this stand, and Sullivan gave you three different versions of what he said when at that interview on the 10th of January he told the boys that the body had been found. And yet he undertook to give the exact language.
Whitney was careful. He could give you the exact language. Sullivan is a man of an entirely different temperament. He gives you the first expression that comes into his mind that gives you the idea. The idea is the same, but the language is different every time; yet he is just as positive with regard to one as with regard to the other.
Take another thing. This horse-car driver Langdon tells you that a girl that looked like Tena Davis (he does not say it was she) and a man who looked like Trefethen, got on to his car on the middle of Malden bridge.
Mrs. Davis tells that Tena told her, so she told Trefethen, that though Trefethen met her near Malden bridge, they did not go on to the bridge. There are two utterly irrreconcilable[sic] statements. Now, either the car driver did not know, made a mistake (I won’t say falsified, for I do not like to say that about anybody), or Tena has misled her mother, or the thing never happened.
Now take Morris, the policeman. He may be an honest man; no question about it. But see how carefully you have got to take the testimony. He says he saw this carriage pass at 1.30 o ‘clock at night; that never before or since has he seen any other carriage pass at that time of night. And yet we put on a man who says he drove up there just that hour the very next night and spoke to Morris. Now Morris did not mean to tell a falsehood. It does not amount to anything, but it shows with what care you have got to take the statements of witnesses.
Now, as I said, there is
No Evidence of Murder.
and there is no evidence that these men committed a murder.
The difficulty with the government’s story and the government’s case is this, that they start first by convicting a man in their own minds, and then go about to get evidence to bolster it up.
He admits himself he has made mistakes in identification, and we all know how easily such mistakes are made.
Take the instance of Parkman, who was murdered, to which Mr. Coggan referred, and how many witnesses were there put on the stand during that trial who swore that they had seen Parkman alive, when he had been murdered and cut up into small pieces for months.
Take the mistake between Kelly and Farnham; both can’t be right; of course one of them is wrong, showing how easy it is to make a mistake. Why, at that very moment that old horse, lame, was trudging along dragging that great delivery wagon which you saw - a big, heavy wagon - over to Wemyss’ store. Trefethen having neglected his work and waited over to Charlestown to see his girl until late, having hurried home, that horse at that very moment was being harnessed or fed to be put into that old cart to go over to Wemyss’ store. There is no question about it, and there is nobody that denies it, not a single denial.
And at that very moment, instead of Smith being standing there by that carriage, Smith was trudging home from his mother’s, happy and lighthearted as a man could be before Christmas, having bought and delivered one turkey to his dear old mother, who has been upon the stand, and carrying the other home to his wife. And there isn’t any evidence against that. Nobody contradicts this, nobody under heavens.
I do not know that I could give you a better illustration of how easy it was for Officer Tufts to make a mistake in identifying Smith than of those 150 jurymen who were brought up here with you early in the trial. How many would you swear to on a dark night if you passed them in the street?
Now, here is a peculiar thing about this buggy business; Tufts did not see any woman there. He swears that he saw no woman there. He walked right by that buggy. He saw the buggy; he saw the creases, even the creases in the curtains. He saw the boot: he could look right in, and yet he saw no one there. If there had been a woman there don’t you think he would have seen her? If there had been a woman there what was the man standing and waiting for? There was
Not Any Women There.
Mrs. Pratt testified that she went up Ferry st., towards Malden, a little between 7 o’clock and 7.07, that she was walking past the store, and she saw that girl. Now, if that girl was there, what was she waiting all that time for? The buggy was there.
Mrs. Dares also went out and also came along two or three minutes before the officer came along. Now, what was the buggy waiting for if Tena Davis was there and was going to take it? Why didn’t she take it and go off? If there was anything wrong, why was all this done so openly?
Now, just think what the government are trying to prove? They are trying to prove that Smith and Trefethen had that carriage there for some purpose of beginning the most enormous and terrible crime you can think of; that that was the first step in a murder; that they had it there meaning to go over on Wellington bridge and throw that girl into the stream.
Was he going to a retired dark place, was it arranged that he should go down into Woodlawn st. or under the shade, under some tree or off where nobody could see, and Tena come and slip in and nobody see? Why, no. This buggy stands right at the most prominent corner in that neighborhood, right under the great flare of an electric light that throws its light around and would identify anybody under heavens.
And it stands there waiting for several minutes, and Smith himself stands there; he does not hide; he stands right out in front of his wagon, the officer comes along, he looks him straight in the face, and the officer goes by.
If this was a case of horse stealing, if it was a little case of breaking into a hencoop, or something of that kind, would not you say it was utterly ridiculous to talk about that being the beginning of a great crime of this kind? And that is always the result when you start with a theory first and try to make your facts conform to it.
I don’t know what the government got Smith there for, unless it was that Trefethen had sent him to meet Tena. But Tena Davis and William H. Smith had never seen one another. Mrs. Davis testified to the fact that these two persons had never met. Now how under heavens was Smith to know who Tena Davis was, and how was Tena Davis to know who Smith was? It is too ridiculous to argue; it is not worth anything.
If any reasonable theory will account for the death of a person, then you cannot hold the accused guilty of it, because the law says there is reasonable doubt whether the other theory does not apply.
I think there is a good deal of uncertainty when Mrs. Dares saw Tena Davis. You remember that was a misty night, Wednesday night; and Tuesday was misty. You remember also that Mrs. Dares went to her little church arrangement there Tuesdays and Wednesdays. In my mind there is a great deal of doubt whether she was there Wednesday night or not. And the funny part of it is that while Mrs. Dares saw Tena
She Didn’t See Any Horse.
Isn’t it possible that it was Tuesday night and Tena was out that evening. The officer did not see Tena, and Mrs. Dares did not see the horse.
Mrs. Dares supposed that Tena was waiting there to take a car. Now the car was due at 7.07. Tena left her house at 7 o’clock, intending to take a car, is the fair presumption. I think the evidence tends more to that than to anything else, that she did take that car. She did not get into the carriage, because she was crossing the street, and the officer, after she was crossing the street, did not see her [word unreadable].
The officer does not see Tena. Why? Because she is gone in that car which the tow boy helped take up. He did not see her; he does not remember anything about it, because he runs with his horse and catches on to the car. Why don’t they bring the conductor of that car to tell us she was not there? I say the natural, plain solution of that matter is that if Tena was there that night, going out at 7 just in time to take the car, she did take the car, as Mrs. Dares and Mrs. Pratt both thought she was going to do.
She did not take that carriage, because after she walked across the street - and she walked across the street probably to get herself in position to take the car, being a little blind - because if she had been in the wagon the officer would have seen her.
Smith was not there that night. We have proved he was elsewhere. No officer ever saw him. The officer thought it was he when he saw him; some weeks afterwards he thought that was the man - a mere case of mistaken identity.
Tena did not go off in that carriage. Nobody saw her get into it. The officer saw the carriage gone. She had been crossing the street and he did not see her. He saw something flop out from the side of the carriage; it might have been the blanket, it might have been the robe; he thought it looked a little as if it was a woman’s cloak.
Great heavens, gentlemen, are we brought to this point, where a man’s life is to be risked, where you will strangle a man by the neck till he is dead because an officer see something fluttering out of a carriage, which might be the blanket or the robe, possibly a woman’s dress.
If that was a woman where was she when he passed? Haven’t you a reasonable doubt about that buggy business? If you have, one link in the chain is broken and
You Cannot Convict These Men.
Now the next link is one that can be very easily disposed of, because it is the weakest link that ever a man put into a chain, and that is that business up at Medford st. and Highland av. That is the next point where they go. They start with the buggy – only Smith wasn’t in it and Tena wasn’t in it – and then they go around up toward Malden, and you know they gave us the very shortest cut through Cross st., and they come to the corner of Highland av., and Medford st.
And they tell us they are going to prove that an officer saw this buggy with two people in it, quarrelling, there about 8 o’clock. Officer Kelly is an honest kind of a fellow, but he is mistaken, for Farnham says he wasn’t there with Kelly at that time. More than that, he says he did not see any dark horse or any Goddard buggy at that time. He tells you, and tells you distinctly, and I think you believe him, that that incident happened at another time, between the 1st of December and the 22d, and it was a gray horse, and it was at 9 o’clock at night, instead of a dark horse at 8 o’clock at night. Kelly is denied by his associate and by the chief of police.
Now come to the bridge; and if ever there was an attempt to impose upon a jury an utterly ridiculous, unfounded, unreasonable theory, it is that theory about the bridge. Do you believe that any man ever tried to murder a girl simply by drowning? Would any man run the risk of attempting to drown a girl before he had made her unconscious?
The rail of that bridge is 13 feet above the water; the girl is alive; there has been no violence, no poison, the doctors testify; no poison, no blow; she is in full possession of her mental and physical faculties. And yet a man takes the risk of taking her up, putting her over the bridge and letting her drop 13 feet. Why there would be screaming there for 15 minutes – for five minutes, certainly, and I think for 15 minutes the struggle would have lasted. Why, that alone would convince anybody not only of a reasonable doubt, but that the whole thing is humbug.
Dr. Hitchings was there that night as a veterinary surgeon. He fixed it by his bill; he was there. Fitzpatrick tries to remember when it was; he says he knows it was the 23d because it was the day he had his horse clipped. I suppose if anybody asked him when he had his horse clipped he would say it was the day he heard the scream. He is entirely
Liable to be Mistaken.
Now, here comes McDuffee, a contractor, who says that that night he went over that bridge, and that he saw two couples, shouting, laughing and talking. Now, here we have a complete answer to those things that Fitzpatrick says he heard, if he did hear them. If he did hear the noise of a horse’s hoofs it was McDuffee’s team. If he did hear a scream, do you know what it was? Of course you do. You know just what young fellows and girls do when they are out on the street for a good time; you know how a girl’s laugh will sometimes rise into a scream.
Mr. Lahey, the drawtender, tells you he discovered tracks there first on the 26th. Mr. Wellington tells you he thinks it was on Christmas morning, but he is not sure, as he says if it was not Christmas it was the next day. And it was the next day, because that is the day that Lahey saw them.
Now, we bring two young men, and they are unimpeached. You remember that was Christmas morning, they went into Boston to get some meat. The stores were generally closed, and they went over that bridge a little after 8 o’clock, and they drove up there on that walk; they went between the guards. If there had been one set of tracks at one place and another set of tracks at another why, they would both have shown, and nobody comes in here and intimates for a moment that there were two sets of tracks or two marks where different carriages went off.
They got Morris here to say that he saw a dark colored horse and buggy pass down Nichols st. about 1.30 in the morning of the 24th, and that was to argue to you that Trefethen had gone over to Boston to mail the letters there. Now, it turned out by the evidence of two clerks from the mail department that the letters need not have been dropped in Boston at all; that they might have been dropped anywhere in Charlestown or Somerville or Chelsea any time after 6 o’clock. What under heavens was the need of Trefethen’s being out at 1.30? He was not out; his mother has told you that
He Was At Home.
They bring on the testimony of Heustis, who says that some time during that week Trefethen called on him and asked about the Boston post mark. Of course he did. He had consulted counsel.
Now, undoubtedly he went in to see Walker, to see if he wasn’t in there the 23d,, and he found out he was in there the 22d. Of course he was inquiring. Accuse a man of murder and he will inquire.
Every witness that Trefethen introduces confirms him; no witness who is introduced on the other side contradicts him in any statement with regard to his whereabouts; no witness that is introduced by the government tends to show that he was anywhere else than he says he was and his friends say he was, not one.
Now, it is just so with Smith, except Tufts, and Tufts is overcome.
Haven’t you any reasonable doubt?
Why, there is not in the government’s case a mark, there is not a scratch, there is not a pocket handkerchief, there isn’t anything that helps them.
These officers have done their duty as they think, very faithfully, and I haven’t a word of criticism to pass on them. They have ransacked everywhere, and what have they found? Only one hair, and nobody knows whose hair it is. It might have been the hair of a little child. Both doctors who examined it tell you it might have been child’s hair or it might have been the hair of any other woman who had hair of the same quality, texture and color.
Now, you know perfectly well that Sullivan and Emerton, Whitney and Shaw, and everybody else, and Hewett and Tufts, and all hands, would be comparing the hair found in the buggy and hair from her head, and laying one down by the side of the other. Would you undertake to say, even with he most honest intention, that one hair might not possibly have got mixed with these? Now, I put that in simply to show you how utterly unsafe it would be to rely upon that.
Good God! gentlemen, think of hanging a man upon such an uncertainty as that!
That hair was wound around a button, seven inches long, the doctors testified; wound around a button and only about an inch of it stuck up. I it was wound around there it had been there some time, and it may have been there since the previous September, when
She Did Go to Ride With Him.
It may have been there for two years, and it may be her hair that was found there. But isn’t there a reasonable doubt, inasmuch as the girl had ridden in the carriage with Trefethen, and before, and it was wound around that button, isn’t there some question whether it got on there the night of the 23d?
The idea of hanging a man because some experts differ about who wrote a letter. Now; there are a dozen theories by which you can account for this letter, or just as many as you have the invention to frame. There isn’t any date to either letter. She had been talking about suicide, it was in her mind; and Trefethen says that when she rode with him she said she was not going to tell who was the father of the child, and if she couldn’t do any better she would commit suicide, and had the means to do it.
The government will say Trefethen wrote that letter. There is not the slightest evidence of it. It is the mere guess of three men who are hired to come and give their opinion, just the same as I hired one man to come and give his opinion.
Every expert who has testified has stated that there are points of resemblance in their handwritings. In other words, either of them might write an anonymous letter and send it, and you couldn’t tell whether it was hers or his; it might have some points like hers and it might have some points like his. Now, the minute they admit that, that is an end of the case, so far as the letters go. The minute you admit, what their own experts admit, that there are similarities in their handwriting, you admit that she might have written that or he might have written it, and that is an end of the matter.
If there is one thing which is absolutely sure in this case, and of which there is no doubt whatsoever; it is that there is no disguise about that letter except the disguise that comes from agitation. There is no purpose to disguise.
Counsel then reviewed at length the testimony of relatives and friends of Trefethen and Smith as to their whereabouts, seeking to impress on the jury that an alibi was firmly established. Continuing he said:
Now, they try to make a good deal out of it because Trefethen said to Mrs. Davis; “Don’t make my name public.” Well, is there anything inconsistent about that? If I were accused of anything of the kind would not my natural remark be: “I will do anything I can, but for heaven’s sake don’t get my name in the public prints or before the police.”
Then they say
He Didn’t Show His Letter.
It is most unfortunate for him that that letter is lost; it is most unfortunate for him that he has to be subjected to the suspicion that because that letter has been lost he has lost it. But he has been perfectly frank in the matter. If he had wanted to suppress it he could easily have done so, but he took it to Mr. Coggan, who made a copy of it, and it was taken and shown to Mr. Richardson, the detective; it was shown to Smith, the brother-in-law.
Then they bring in the little things about Smith saying he dug in the cellar. Smith had started as the detective. He went down to Mrs. Davis and said, “Give me the picture and tell me all the things, and I will go and look among the lying-in hospitals.” He hears Mrs. Davis’ accusation, he goes down stairs and in an old barrel finds a picture. And then Smith, in his excitement and agony, said he thought of digging in the cellar, and didn’t find anything. Of course not. It is rather ridiculous and cheap, the whole business.
There is no reason to doubt that Trefethen has been wronged in the whole matter of this statement of his whole relations to that girl. I would not stand here and bring the slightest reproach upon that poor girl.
Mrs. Peak testifies that he came in once, and Tena said: “I hear you are engaged to a girl over in Dorchester.” He didn’t deny it; not at all; not as [sic] all.
Now, gentlemen, we all of us know something about those things. Are parties engaged when no single present all these years passes between them, when not a letter is written between them in all these years, when he does not take her to a single place of amusement all those years, when all that time he never calls on her on a Sunday evening, which is lovers’ time and engaged people’s time; does not even give her a drink of soda? And yet they would undertake to make you believe that they were engaged. If there is anything proved in this case, whatever else there is, they
Were Not an Engaged Couple.
Here he is engaged for seven years to a young woman in Dorchester, and they know it; and they would have you believe that without a present, without a letter, while he is under another engagement, and they know it, that he is engaged to her.
Well, they say he rode with her. So he did, and I presume others have ridden with her, and both those rides are perfectly explanatory. The first was two years ago when he was down there at Charlestown. He was going home to Everett and this girl was dressed up to go to Everett, and she got in and rode over with him to Everett, and he didn’t bring her back. The other time was last September. Then he was living nearer. He was out with his buggy, and she says, “I want to ride with you a little ways;” and she rode with him and told him this story, and his advice to her was perfectly good and proper, as the officers testified to you. He says, “Tell your mother; confer with your mother about it.” Is that the language of a man who wanted to avoid anything?
A man in Trefethen’s position, if he had been carrying on this liaison with her, would not have been exposing himself so freely and frankly as he was, going there with his carriage, going in at all hours and coming out. Where you find the real person at fault, if it ever comes to light, you find something insidious and hidden, and secret; somebody, perhaps, taking advantage of this very familiarity and acquaintance which Trefethen had.
Did you ever think of this? – that mother knew the condition of her daughter in October. They would have you believe that he was engaged to the daughter at that time; and yet that
Mother Never Said One Word to Him,
either about the engagement or about the condition in which Tena was. Can you conceive of any mother in the world who has reason to believe that a man is not only engaged to her daughter, but is responsible for her condition, who yet never says one word to him? It raises the reasonable doubt and question whether even the mother herself believed that Trefethen was the father of the child, or whether it might not have been somebody else.
Why, on the morning of the 24th, although Tena had not come home and should have been home by 9 o’clock of the night before, and the mother was up all night, there was no sending for the neighbors to get anybody to go down to Trefethen’s house.
Now, suppose some other man was the farmer. Why, if he was, then Tena went to meet that man on the 23d.
Nobody pretends that she met Trefethen that night; there is not the slightest evidence of it.
Nobody can now for a moment believe that she met Smith that night.
If she met anybody else, then it was the one who was responsible; and that has a little to do with explaining that apparent inconsistency where the mother said that she seemed so cheerful on the morning of the 23d and yet had told her that on the night of the 22d she had parted with Trefethen in anger.
This is not a case where you have reasonable doubts, although if you do have reasonable doubt you cannot find them guilty; it is a case where it is clear beyond expression that these men are not guilty. Why, you cannot say that they are guilty – there is not any evidence of their guilt.
I end, as I began, by saying that the government has not proved even that there was a murder. They have not proved that either of these men committed a murder, or hired or procured anybody to commit it.
It is a case plainly of suicide, as every incident in it shows. And because that is a reasonable explanation, they are entitled to acquittal; not only because you have reasonable doubts, but because, from the foundation up, the case is not proved.
ATTORNEY-GENERAL ARGUES.
For an Hour He Summed Up Before the Court Rose.
Atty.-Gen. Pillsbury proceeded to argue for the government, after a brief recess, and for an hour he summed up the evidence of the prosecution.
In part he said:
It has been suggested to you, gentlemen of the jury, that the lives of these prisoners are in your hands. Gentlemen, it is not so. The law of this Commonwealth commits no man’s life to the hands of any men or man. The prisoners are amenable to the law, and their lives are in the hands of the law. You have here the plain and simple duty to declare the truth upon this evidence.
It became evident very early in the trial, and it could not but be so, that the reliance of the defence was in persuading you to believe that Tena Davis took her own life. There is just one circumstance in the case which, in the absence of other circumstances, without any other light upon the circumstances of her death, would point beyond question to the supposition that she was the author of her own death. And that is the situation in which we know she was at the time of her death. I do not ask you, gentlemen, to over look that circumstance. I ask you, on the contrary, to take it into consideration and give it all due weight and effect, but to consider it not by itself; I ask you to consider it in connection with the other evidence and with all the evidence in the case.
Is there one thing in this evidence which, if we did not know she had died, could be taken as pointing to suicide? Not one. She was a bright, cheerful and healthy girl. She was always engaged in her ordinary pursuits. She had, so far as appears, and if the contrary were true it would have been made to appear, no fits of despondency, no seasons of melancholy, no morbid mind, no moody disposition, nothing which would impel her to suicide. What was there in the circumstances arising out of her relations with Trefethen, anything to indicate that she left her home that night with any suicidal purpose?
She leaves her home at 7 o’clock, Dec. 23, smiling and happy. She has been more cheerful than usual during the day, if anything. There are indications that she left home that night in expectation of some event for which she had long wished and hoped. She left her home with a smile; not one thing in her conduct, not one thing in her appearance, not one thing in her manner or anything we know of the circumstances to indicate the fate which was to befall her so soon.
Did she go out to commit suicide? No. She went out to meet the man who had won her affections – the man who, whether she was formally engaged to be married to him or not, she hoped to marry. She went out, not to take her own life, but to meet her lover, and by appointment with him.
We find her next on the corner of Ferry st. and Broadway, where she is seen first by Mrs. Pratt. She found Tena Davis standing there
Under the Electric Light.
There is no doubt but that it was Tena Davis. Mrs. Pratt knew her, had known her long, was familiar with her person and recognized her as she stood there.
She is next seen in the same spot by Mrs. Dares, and that time is fixed. Mrs. Dares knows what time she left home; she knows whither she was going; she remembers the night distinctly, there is no doubt about it, and she knows about what time she arrived at the corner of Ferry st. and Broadway, and it was about 7.30 or 25 minutes of 8, and there she found Tena Davis, still waiting under that electric light.
“Was that the conduct of a girl who had left her home on the way to take her own life, or was it the conduct of a girl who had left her home to keep an appointment with her lover? It is exactly consistent with what we know her purpose to have been in leaving home, and it is utterly inconsistent with the purpose which it is necessary for the defence here to ascribe to her.
What do we see of her next? About 7.35 Officer Tufts find that buggy standing on the corner of Ferry st. and Broadway, a buggy which answers the description of Trefethen’s buggy, in charge, apparently, of Smith. As Officer Tufts approaches the team, the man turns and looks sharply at him, and that attracts his attention, and he looks sharply at Smith. He pursues his way, and after he had gone a short distance beyond the corner he turns and casts back another glance at that buggy. He sees just disappearing in it what he takes to be the skirts of a woman’s dress, and the buggy drives away. At the same moment Mrs. Dares looks towards the corner and she sees that team disappear. The girl is gone, the team has gone, the girl has gone in the buggy.
About 8 o’clock, just half an hour after the buggy leaves the corner of Ferry st. and Broadway, Officer Kelley sees a buggy answering the description of Trefethen’s on Highland av., driving towards the bridge.
The body of Tena Davis did not float. It was found at precisely the point where, according to the evidence, the ordinary currents of the outgoing tide – the tide at 8 o’clock that night, as you remember, was one-third ebb, ebb tide and one-third run out – the body was found at precisely the point where it would have been looked for according to the course of the currents, having gone
Off the Wellington Bridge.
The body of a drowned person does not rise from the bottom until it begins to decompose. It is decomposition and the subsequent enlargement of the size of the body in proportion to its weight, reducing the proportion between its specific gravity and that of an equivalent amount of water, it is that which brings the body of a drowned person to the surface, and nothing else. Now, Dr. Durrell testifies that in this body decomposition has hardly begun. There was no reason, therefore, why it should rise. There was every reason why it should not rise. And upon this evidence it is impossible to suppose that it had ever risen or floated.
Do you suppose, gentlemen, that that girl could have gone down and thrown herself from the Malden bridge at the hour of the night when she must have died – Malden bridge, the most populous thoroughfare between Boston and Charlestown – without being observed? And if she could have done it without being observed, is it possible to believe for a moment that, under the conditions surrounding that body when it was found, that she went into the water from any point save the Wellington bridge, within 180 feet of which her body was found?
Her last meal being at 5 o’clock, that fixes the time of her death as between the hours of 7.30 and 8.30.
We know that she must have reached the Wellington bridge, and gone into the water from it at or about 8 o’clock that evening. If she traversed that distance on foot, if this timid, near-sighted girl, who rarely went out alone, turned all those corners, threaded those populous streets, traversed that lonely marsh, and reached the Wellington bridge on foot at 8 o’clock, is it not remarkable that she was not met or seen or observed by one single person who could be brought here to say so? Why, gentlemen, see how long the search has been. She reached the Wellington bridge in that team.
Mr. Wellington found the tracks of a buggy, as he describes them – not of a market wagon – entering upon the plank sidewalk at the point where the plank sidewalk begins; just what Lahey found 24 hours later, and the same track, beyond doubt.
There is no doubt, upon the evidence of Ellinwood and Weeks, that they reached the bridge some time after Mr. Wellington had observed those tracks; none whatever. They took the sidewalk some 60 feet from the end of the bridge, and they drove along from the sidewalk of the street, having taken it at that point, until they came to the sidewalk of the bridge, and then entered the sidewalk and drove upon it to a point which they have described. And the distance from that point to the point where the other wheels turned off is 129 feet.
Now, gentlemen, you who have seen that bridge do not need to be told that a man who drove upon that sidewalk at that point drove there with some purpose. It was not accident; it was design. You do not need to be told that whatever the purpose was it was accomplished at that point near the draw where Lahey’s mark is made, for at that point the team crossed the guard, turned into the roadway, turned upon its track, and returned from whence it came.
At this point the court adjourned to 9 o’clock today.
The Boston Globe – 4 May 1892 – Wed – Page 12