and Broadway, there was any horse car there.
Mrs Pierce has told you that a man who wore a gray ulster and derby hat, and whom she identifies as Trefethen, called at her office and told her he had got a girl into a scrape.
I would not ask you to hang a man on her testimony. But it is a part of the evidence in this case and is to be taken with the whole evidence.
Miss Paine is the daughter of Mrs Paine, who is the friend of Mrs Lindsey, who is the friend of Mrs Hubert, and she tells you she saw Trefethen at the Weymss store at Charlestown, at about 9.10 that night.
Miss McNellis could not fix the time that Trefethen was there.
It is Miss Paine, who not only fixes the time, but also that it was the delivery wagon.
But Miss McNellis was standing outside the door while Miss Paine was inside the store and sitting down.
Therefore, that Miss Paine knew what team was there is extremely improbable, she not having any reason for taking notice of it.
If Trefethen was at Wemyss’ store at or about 9 o’clock, is that inconsistent with his appearance on Wellington bridge at 8 o’clock? Would he not get away from that bridge as soon as he could?
It was his only security to get away as swiftly as possible. The time was abundant for him to be at Wellington bridge at 8 o’clock and at Weymss’ store at about 9.
Even with him at the Weymss store with the delivery wagon is not incompatible with his appearance on Wellington bridge with the buggy.
It always happens that with whatever labor, pains, industry and cunning the guilty man builds up the walls between himself and detection, he leaves some breach.
The power that rules all makes the hand of the guilty man turn against himself and
Forge His Own Destruction.
There are the letters in this case.
Three experts have testified on each side.
I have never asked the jury, and shall never ask a jury to determine a case upon the testimony of experts in handwriting.
They are merely here to assist you in your opinion.
They do know some characteristics of handwriting that you probably do not know.
But lay aside the testimony of the experts in the case and examine the letters yourself and you will find more similarities in it of Trefethen than Tena Davis.
Expert Carvalho says it was written under circumstances of excitement.
Did not Trefethen do it under those conditions?
I am content that you may lay out of the case the testimony of the experts. There is something further than that testimony. Do you suppose that Tena’s mother would not know whether her daughter wrote it?
Mrs Davis, when she saw that letter, said it did not come from her daughter.
The testimony of Mr Heustiss means That if it was before Dec 23 that Trefethen saw him, it showed that he was preparing to mail those letters.
If he went to Mr Heustiss after Dec 23 he went to him for the same purpose that he went to Mrs Davis for Dec 26 and asked her if she had received a letter from Tena.
The hand that wrote those letters mailed them. There is no reason to doubt that they were mailed at the same place.
No one will believe that she wrote those letters before she left home.
At the corner of Broadway and Ferry st
She was Right Beside a Mail Box
and she could have mailed them there.
Within one hour after she left that corner she was in the waters of the Mystic river.
On the evidence of the location of the nearest letter boxes to and on the road to Wellington bridge and the time within which she must have arrived there, she could not have written and mailed those letters.
Did Trefethen write and mail them?
Officer Morris said that about 12 that night, while standing near Nichols st, he saw a side-bar buggy turn and go down Nichols St.
That does not show conclusively that this was Trefethen’s buggy, but if it was his buggy where was he at that hour on that night?
He had gone, gentlemen, to mail those letters in Boston.
Let us look at the letters. Rather look into them.
They were written for the benefit of the one that wrote them, and that was Trefethen.
Why did they make a copy of the last letter unless it was going to be lost? They knew that the lost letter would afford better means of detection.
Who is the one the mother thought was guilty? James Albert Trefethen.
If this girl committed suicide, confessedly she was driven to it by him, and if he was guilty would she lie for his sake in a letter to her mother?
Would she have written such a letter to her mother, whom she left behind with a smile one hour before she went down into the waters of the Mystic river?
That letter, containing
Not One Last Farewell,
nothing to comfort her aged mother, that only contained the fact that she would be dead and Trefethen was innocent, written by Tena Davis.
The letter to Trefethen was not written by her. Look at it, gentlemen. It says: “Mother has driven me almost crazy.” That is a lie.
Again look at it: “I want to thank you for your kindness to me.”
For God’s sake, gentlemen, what kindness?
Deltena Davis never could have written those letters. She never could have mailed those letters. They were not written for the benefit of herself or her mother, but for the sole benefit of James Albert Trefethen.
Would not this defendant have immediately produced that letter if it was genuine, and shown it to Mrs Davis, and said: Here, this explains Tena’s disappearance.
Gentlemen, that letter was a fraud and Trefethen knew it.
Now on Dec 25 Trefethen inquired of Mrs Davis if she had received any communication from Tena. What communication was he looking for?
My brother has said that there is no evidence that a murder was committed or that Trefethen committed murder.
My brother could have had you discharged as jurors if they were satisfied that that were so, and you could have gone your several ways some days ago. That has not been done.
I ask you to look at the whole evidence and see if beyond a reasonable doubt you are not satisfied that the case has been established, and to pay no regard to what may follow.
Atty Gen Pillsbury concluded at 1.40, having talked 6 hours and 30 minutes.
JUDGE DUNBAR’S CHARGE.
Difference in Degrees of Murder—What the Jury Must be Satisfied Of.
Gentlemen of the jury—This case has reached a stage at which it becomes the duty of the court to state to you the principles by which you are to be guided in your deliberations and in reaching a conclusion which it is your duty to announce by your verdict.
In the trial of every cause important duties devolve upon the different persons who participate in the trial; each has his distinct and separate province, each has his own peculiar duty to perform, and the duty is one which cannot be delegated or avoided; it must be performed.
To the counsel, both for the commonwealth and for the prisoner, is given the duty of presenting for your consideration all the competent evidence which bears upon the issue which is submitted to your decision; to both is given the privilege and the duty of assisting you by their arguments to reach a just and proper conclusion.
“When an argument served to point out the distinction between what is true and what is false, when it rightly groups the facts which are in evidence, when it calls to your attention the inferences which are proper to be drawn from facts proven, it may and it will be a great assistance to you in the performance of your duty.
Then and only then is an argument of any value; Then and only then does it perform its true function as an argument when it is an assistance to the jury in reaching a proper conclusion.
It is unnecessary for me to say that in this case the arguments both for the prisoner and for the Commonwealth, had been of a high order of ability. They have been not only able but exhaustive; they have, as it impressed me, been not only able and exhaustive, but honest, and with the evident intention on the part of the council to assist you in the performance of your duty.
This much, it seems to me, is due to what has been done by the council in this case.
It is the Duty of the Court
in trials to direct the trial to see that nothing but proper evidence is introduced for the consideration of the jury, to decide all disputed questions of law that arise in the progress of the trial, and at the conclusion of the evidence and the arguments of counsel, to state to you the principles which it is important that you should know in dealing with the evidence.
The court has nothing to do with the decision of facts; That is your sole and exclusive province.
You have probably noticed during the progress of the trial that the court expresses no opinion upon the weight of evidence, and has nothing to say with relation to the inferences which are to be drawn from the facts, or as to the facts which are established by the evidence.
The court may direct your attention, and it is proper that the court should do so, to the different degrees of importance which are to be attached to the different kinds of evidence, but beyond that the court has neither desired nor right to go.
And you will understand also, gentlemen, if you do not already understand it, that the court has no opinion with reference to any question of fact which it desires to convey to you, nor any impression which it desires you to receive, from anything that may be said or done by the court upon that subject.
The court desires to express no opinion, to convey no impression upon that subject, and if it should unfortunately or unwittingly do so, you are to disregard it, because, as I had occasion to say to you a moment ago, the law places upon you the responsibility alone of deciding the facts, and that province must be invaded by no other person or by no other power.
To You is Committed
the burden and responsibility of deciding the facts and of determining the guilt or innocence of the prisoner. And I hardly need say to you that to do this rightly you should approach the performance of your duty with honest, fearless and impartial minds. When you took your seats up on this panel, you declared under the sanction of your oaths that you were not sensible of any bias or prejudice in favor of or against either party, that you had formed no opinion which would prevent you from rendering a true verdict upon the evidence and the law, and that you would well and truly try the issue between the Commonwealth and the defendant.
It is fitting, it is necessary, that you should thus approach the performance of your duty. It was well said by an eminent judge: “A trial would become a mere mockery or a farce if jurors were allowed to sit upon a cause who had prejudged it.”
In an intelligent community jurors cannot fail to receive some impression from facts which are public concern and have much notoriety, but it would be a violation of the first principles of the administration of justice if a juror could sit up on a cause which he had already predetermined in his own mind.
And the court assumes that in the consideration of this case you will put out of your minds any impression you may have had, all that you may have heard, or read or seen outside of this courtroom with reference to this case, save only that which you saw upon the view under the order and direction of the court and its officers, and be controlled in your decision only by the law and the evidence.
It is proper to assume, also, that you desire and will be able to
Keep Your Minds
in a receptive state, open to all proper evidence, all proper suggestions, until your verdict is reached; that you will be willing and anxious, each of you, to listen to the views of your companions upon the jury, and to be convinced thereby if you are in error.
For it is the judgment of 12 men which is sought in trials by jury, and when any one man reaches the conclusion, to quote again the language of the same judge to whom I referred to a moment ago, that he is beyond deliberation, beyond argument, young reason, that instant he disqualifies himself for the position of juror, he makes his own individual, particular judgment the standard of right instead of the combined and aggregated wisdom of the entire panel.
The offense with which this prisoner is charged is murder. There were originally in this indictment four counts, and there were originally two defendants.
But the progress of events has rendered all but the first count of no consequence, and you are concerned solely with the question of the guilt or the innocence of the prisoner, Trefethen.
The count upon which you are to decide the question at issue between the Commonwealth and the prisoner is the first count.
When you go into your jury room with the indictment and examine it, you will see that it is a charge that this defendant and when William H. Smith jointly committed the murder, and the progress of events at this trial has already informed you that Smith has been acquitted of this offence, and that the only question now to be decided is the question of the guilt of this prisoner.
You understand, I presume, although I think it has not been stated during the progress of the trial, that when two persons are
Jointly Indicted
in one count for an offense that one may be acquitted and the other may be convicted; and that the fact that one is acquitted or convicted has nothing whatever to do with the guilt or innocence of the other person who is jointly charged in that count.
So that when you come to the consideration of the question under this count you will treat it precisely, gentlemen, as if you were considering account in which James Albert Trefethen were charged with the murder in the same terms in which Smith and Trefethen are charged in the first count.
Murder is the unlawful killing of a human being, with malice aforethought. The word “malice,” as used in this connection, does not necessarily imply ill will or hatred or revenge, framing one of them.
Nor is it necessary than any one of these should be proved to establish malice.
It is enough if it appear that the killing was intentional and without legal excuse or justification.
The condition of the mind which prompts one to do another and injury without such excuse or justification is malice in the contemplation of the law; and if the intention to kill is formed before the commission of the act
It is Malice Aforethought,
because “aforethought” means thought upon beforehand.”
By the Statutory law of this commonwealth murder is divided into two degrees, murder in the first degree and murder in the second degree.
Murder in the first degree the legislature has defined to be “murder committed with deliberately premeditated malice aforethought, or in the commission or attempt to commit any crime punishable by death or imprisonment for life, or committed with extreme atrocity or cruelty.” And all other murders are murders in the second degree.
The contention of the commonwealth in this case is that this is murder in the first degree, not because the murder was committed with extreme atrocity or cruelty, or in the commission or attempt to commit any other crime, but because it was done with deliberately premeditated malice aforethought.
You have only to consider, therefore, in determining the degree of murder, if murder was committed by the defendant, whether it was committed with deliberately premeditated malice aforethought. If so it was murder in the first degree; if not, it was murder in the second degree.
Murder in the first degree, in that view of it which we are now considering, has the added element of deliberation. It implies a premeditated purpose deliberately performed.
It Does Not Imply
that a considerable period of time has been occupied in deliberation, or that there has been much lapse of time between the formation of the purpose and its execution.
Because the mind may work, and it does work at times, with great quickness, and reaches its conclusions with absolute directness and rapidity.
It is rather a question of logical sequence, that is logical connection, then it is a question of connection in point of time.
And there is no limit of time which can be fixed as necessary for the formation of a purpose to kill, which, if executed, will constitute the offence, that of murder in the first degree.
When the purpose is resolved upon and the mind determined to do it before the fatal act is done, no further interval of time is necessary to warrant the inference that the murder was deliberately premeditated. There is another branch of homicide to which it is not necessary that I should call your attention in this case or give you any definition, because there is no contention that the evidence in this case, if it proves homicide, which means the killing of a human being, would justify the inference that it was manslaughter, and, therefore, I shall leave that branch of the case without any further comment.
The indictment charges the defendant with the murder of Deltena J. Davis, and it embraces both degrees
By that I mean that under that count a prisoner, if the evidence warrants it, may be convicted of murder either in the first or in the second degree. The burden of proving both the murder and the degree - that is, as to whether it is the first degree or the second degree - rests upon the Commonwealth. There is no presumption about it.
It is a question of proof, and the proof must be beyond a reasonable doubt. Now you have had allusions made in the course of the argument and in the course of the trial to reasonable doubt, and it has been on the whole fairly interpreted to you by both counsel, who do not differ in their interpretation of it.
Many definitions have been given in the attempt to define more clearly than the words themselves express it, the
Meaning of “Reasonable Doubt.”
They clearly do not mean any possible doubt. It is possible to conjure a doubt upon almost any subject. In fact, I believe there have been a class of philosophers who are said to have doubted the existence of matter.
It is not an imaginary doubt, it is not a possible doubt; it is a reasonable doubt.
The doubt should be a reasonable one, and I know of no rule that can be of any assistance to you beyond the statement that proof beyond a reasonable doubt is proof that produces such an abiding conviction of its truth in your minds that you would act upon it in matters of great concern and importance in the affairs of life.
The burden of proving the offense necessarily includes the proving of each and all facts necessary to establish the conclusion of guilt, and each of these necessary facts is to be established by proof beyond a reasonable doubt.
But a distinction is to be observed at this point between facts relied upon by the government and necessary facts.
Not all facts relied upon need be proved beyond a reasonable doubt, or proved at all, unless they are facts which are necessary to establish the conclusion of guilt.
Now, you know that in the course of trials it frequently happens, and it has happened in this case, that certain facts have been mooted between the Commonwealth and the prisoner here. Some of those, you may be satisfied, had been established beyond a reasonable doubt upon the evidence. Some of them you may feel doubtful about.
You may have a reasonable doubt as to their having been proved.
It Does Not Follow,
that, because everyone of those facts which are mooted between the parties is not established beyond a reasonable doubt, that there cannot be a conviction. That would be an absurdity.
You will want to bear in mind what I said, that all the facts which are necessary to establish the conclusion of guilt must be proved beyond reasonable doubt.
In other words, when you are analyzing this evidence and examining it before you can apply any fact in the chain of your reasoning which leads you to the conclusion that the defendant is guilty, you must be satisfied that that fact is established beyond reasonable doubt; but if there are other facts or matters which are in issue between the parties which to your minds is not important, or without the proof of which you would be satisfied to reach a conclusion, then you may say those facts are not essential; it is not necessary that they should be established, and my mind necessarily, or naturally and reasonably reaches the conclusion of guilt without the proof of those facts. At this point a recess was taken to 2:00 pm.
The court came in at 2 o’clock, and Judge Dunbar resumed his charge:
Before we went to dinner I was saying something to you about necessary facts. Intimately connected with that is another principle, which is this:
That all the facts proven, not of all which evidence is offered, but all the facts proven must be consistent with each other, they must all be consistent with the theory of guilt, and they must all be inconsistent with the theory of innocence. Death may occur from other causes than the guilty act of another.
In this case, indeed, it is contended for the prisoner that it may have been due to suicide, and evidence has been introduced upon that issue which, it is claimed, should at least raise a reasonable doubt in your minds.
Before the prisoner can be convicted, the evidence must exclude every other reasonable theory of death than murder.
It is not necessary that the government should introduce evidence to prove affirmatively that death was
Not Due to Suicide,
but it is necessary that the evidence should be such as to exclude every reasonable hypothesis of suicide, and that beyond a reasonable doubt.
Every man who is brought before a jury for trial up on a charge of crime comes with the presumption of innocence, and this presumption continues until it is overcome by the evidence. He is presumed to be innocent until he is proved to be guilty. This presumption is based upon the general observation and experience of mankind. It is in accordance with such experience.
It is not different in origin from other presumptions upon which we are accustomed to act in our everyday life.
It is unfortunately true that some men lie, some steel, some commit murder; but it is the general experience and observation that the great majority of men are truthful, are honest and are not murderers. In ordinary life, therefore, we presume, unless we have evidence to the contrary, that a man is not a liar, nor a thief, nor a murderer.
And this same presumption obtains in legal proceedings. We presume that witnesses tell the truth, and that men have not committed crime.
But this presumption may be overcome by evidence, and when it is so overcome it is at an end.
The evidence upon which reliance is placed to substantiate the charge against the prisoner is of the kind usually known as circumstantial.
Much has been said and written in the attempt to distinguish between the nature and importance of direct and circumstantial evidence; But I apprehend that there is little value in such analysis in the practical consideration of a case.
The Important Question is
Does the evidence convince the mind and bring it to a satisfactory decision? If so, it is up little importance whether it be called by one name or another, or whether it be in its nature direct or circumstantial.
The line of distinction between what is direct and what is circumstantial is often so fine that many persons would confound the two, and would say that certain evidence was direct when it was circumstantial, and, possibly, that it was circumstantial when it was direct.
You see an apple hanging up on a tree; you look again, the apple is lying on the ground. You say it has fallen, and the conclusion is irresistible.
Is the evidence by which you reached this conclusion direct or circumstantial? No eye saw the apple fall.
The conclusion is an inference from what you saw and your knowledge of the laws of nature, and the evidence which brought your mind to that conclusion was circumstantial.
In many, perhaps in the majority of criminal cases, circumstantial evidence is indispensable.
Crimes are ordinarily secret.
Most men conscious of criminal purposes and about to engage in criminal acts seek the security of secrecy and darkness.
Their purpose is to escape observation.
It is therefore necessary to use other kinds of evidence than that of those who can testify directly to the commission of the crime such other proof as may be relied upon to lead to satisfactory conclusions.