by Jack Finney
A cousin of Harvey Burdell's, Benjamin Maguire, was put on to examine various documents found in Emma Cunningham's possession, and say which were in the Doctor's handwriting. And then—on cross-examination again—the defense brought out from Maguire that quite a few of Dr. Burdell's relatives had been on bad terms with him. And now the jury had to consider the possibility that someone besides Emma Cunningham might have had reason to want Harvey Burdell dead; someone else who might inherit.
Surprisingly and suddenly, the prosecution rested. That was all; that was their case against Mrs. Cunningham. Why Farrell wasn't called—the man who said he'd sat down on the steps of 31 Bond the night of the murder, and seen Eckel peer out the front door—I don't know. There had been hints in the paper that possibly he was a drunk. Maybe the prosecution had learned that he was, and that the defense was primed for him, though that's unsupported guesswork. Of course, Farrell's story was remarkable: that he'd come along at just the moment Harvey Burdell had come home … had sat there evidently listening to the actual sounds and cries of the murder … and then that John Eckel had opened the door to look out at him. Too good to be true? I never found anyone suggesting that a man opening the door as Farrell sat on the steps might have been, not Eckel who lived there, but the murderer about to escape the house. And who sees Farrell sitting there, orders him away, and a few minutes later does flee the house. But to me that's more likely than Eckel, having done the job, opening the front door. Why would he? The explanation by the Tribune that it was to make sure no one was there is silly. But those are only my speculations; no one mentioned these possibilities. We know only that Farrell simply wasn't called.
Nor were others you might have expected. The Times published a letter saying: "In common with the whole community … I have shared the general conviction that the parties in the house must, in the nature of the case, have known something about that awful deed.
"At the Coroner's inquest … the evidence of Dr. Blaisdell made upon my mind an indelible impression…. It tended far more than anything else … to fasten my suspicions upon Mrs. Cunningham…. It was to him that Burdell made those repeated declarations of his hatred and fear of Mrs. Cunningham … of the apprehensions which haunted him…. And it was to Blaisdell … that Burdell stated that he had made a will—a fact which, taken in connection with the non-appearance of any such instrument, went far to fasten suspicion on the woman who stands indicted for his murder.
"With these impressions … I looked forward to the trial as certain to clear up the mystery. And when I read Mr. District-Attorney Hall's opening speech, much as I disliked the unwarrantable, repulsive, and utterly savage tone in which he speaks of a woman whose position should have shielded her from abuse as unprofessional as it was needless and ungentlemanly, I certainly expected that he would leave nothing undone which could tend to clear up the question of her guilt.
"But I see from this evening's papers that the prosecution has closed; and yet Dr. Blaisdell has not been called to the witness' stand at all. What does this mean? Is the public to be amused with a sham trial? Is Mr. Hall merely going through the forms of law, and purposely excluding all the really pertinent and important testimony … ?
"Not a word has been said of the sham marriage…. Only one of the inmates of the house,—neither Snodgrass, Eckel, nor either of the daughters—has been examined…."
This was signed "JUSTICE," and the Times said: "We publish the above, although it conflicts with our purpose not to enter upon any discussion of the case while the trial is ending. The question which it asks is certainly one which the public will echo. But it is quite fair to presume that the District-Attorney is the best judge of his duty…."
The prosecution abruptly rested, but Judge Davies didn't adjourn. There were some hours left of the day, so he simply directed the defense to begin—immediately. And Henry Clinton stood up, walked to the jury box, and began: "May it please the Court. Gentlemen of the Jury: Although not altogether unaccustomed to address Juries in capital cases, I have never done so under the circumstances which surround the present case. I have never before arisen to address a Jury where the prosecution, after closing their evidence, had so utterly failed to point even the finger of well-grounded suspicion toward the prisoner at the bar, as in the present instance…."
I think Clinton might very effectively have stopped right there, but of course he didn't. Orations were de rigueur, possibly the jury might have felt cheated, and Clinton went on, did a good job of denouncing the D.A.'s denunciation, and then rivaled him in oratory: "… the anguish which wrung her soul when scarce three short years ago the husband of her youth was entombed beneath the sod … when she lay stretched upon the bed of sickness herself, as she supposed, about to be drifted into the oceans of eternity …" (During this part "Mrs. Cunningham was in tears, and the Jury listened with much interest and attention.") "Suddenly there shone out from the horizon, not that star of Bethlehem, whose serene and hallowed light had pierced the darkness of her affliction, as the grave … had closed over the lifeless form of her husband and her earthly hopes, which were all entombed—but the baneful star of her destiny—her ill-fated union with Dr. Harvey Burdell…." Etc.
But there wasn't too much of that; just enough. Clinton then summed up the prosecution's evidence, in his client's favor; pointed out its clear deficiencies by referring to witnesses who hadn't been called; and said he'd call some of them himself for the defense.
Among his witnesses was a professor of surgery at New York Medical College who said the Doctor's wounds were made by a person with both anatomical knowledge and great strength. Why great strength? Because the professor had propped up a naked corpse in sitting position, and then had a couple of students (who surely got A's) stab the dead body in various places. This didn't take much force, but then they dressed the corpse in underclothes, shirt, and heavy outer clothing, the students went at it again, and this time it took a lot of force to plunge those daggers in; sometimes a dagger actually recoiled.
Dr. Walter B. Roberts talked about the good relations he'd often seen between Emma Cunningham and Harvey Burdell. Ten-year-old Georgie Cunningham gave a very persuasive child's-eye picture of a calm domestic evening before the murder, spent in preparing sister Helen to go off to boarding school in the morning. (Incidentally, when George undressed that night in this pre-petroleum age, nearly all of America's oil still lying untouched belowground, his room was lighted with "a sperm candle" made from whale oil.) Reading George's testimony, trying to hear it, it isn't easy to reconcile the evening this boy thought he saw with that of a family planning murder.
The Reverend Snodgrass, George Snodgrass's father, had seen nothing amiss at 31 Bond when he and his wife visited Mrs. Cunningham there. Dr. Samuel Catlin (with whom Mrs. Cunningham had already discussed her secret plans once this trial was out of the way) was very helpful. He had been her family doctor when she lived in Brooklyn, and said that "… three years ago she was attacked with inflammatory rheumatism, which affected [her] shoulders…." This enlarged the joints, Catlin said, and: "The strength of the parts affected would naturally be very much diminished." So she could hardly have struck the blows—through all those layers of clothing—that killed the Doctor, if you believed Catlin.
George Snodgrass told his familiar story: of a household in which, yes, there'd been quarrels but nothing compatible with murder. And then the defense brought on a new and powerful witness, Daniel D. Smith, doctor of medicine, who lived at number 35 Bond Street. This was only two doors from 31, easily available to the coroner, the newspaper reporters, or anyone else. But it was the defense who found him.
Dr. Smith sat down, and told the jury that he and his son had been conducting experiments on the night of the murder, "… testing the power of the electric current on various articles, such as alcohol, phosphorus, &c. He had occasion, in these experiments, to use pieces of leather, and shellac, for joining tubes, and scraps of woolen rags, for cleaning instruments. The woolen and leather so used
, became saturated or impregnated with chemical fluids. When a quantity of leather or rags accumulated, it was his custom to burn them up. On the afternoon of Friday, January 30th, intending to spend the night out of town, he gathered a heap of woolen rags and pieces of leather, and threw it upon the remains of an anthracite coal fire, opened the window of the room wide, locked the door, went off and took the cars. The room in which he burnt these rags was the front room third story…. On his return to the house, the next morning, he found that the smell of the smouldering rags and leather pervaded the whole premises, and so strong and unpleasant was it, in the room in which they had been consumed, that he had to fumigate it. It was a mixed smell of burning leather and woolen, saturated with chemicals."
I think Smith's testimony has the sound of simple truth, a disinterested witness without reason to lie; and A. Oakey Hall hardly bothered to cross-examine, asking only what time Smith had left his house, and the condition of the fire when he returned. When Dr. Smith left the stand, an important part of the case against Emma Cunningham left with him— good-bye bloody clothes burned in a midnight fire. However bright the light in the attic had seemed to Dr. Parmly that night, it appears to have been only the candle or candles of some of the half-dozen people who went to bed in the attic.
Smith's son, Fernando, corroborated his father's testimony, and added that he had come home to number 35 between ten and eleven on the night of the murder wearing a large gray shawl and cap. The possibility that it was he whom witnesses had seen in Bond Street that night, and not Harvey Burdell, was real, adding more confusion and doubt to the case.
Then a cousin of Dr. Burdell's, Mrs. Catherine Dennison, said that relations between the Doctor and Mrs. Cunningham had always seemed frifendly to her. Helen Cunningham took the stand "a little confused on first entering the witnessbox, owing to some difficulty in extricating herself from her veil which had inconveniently wrapped itself around her. She smiled and blushed several times and nodded her head to someone in the Courtroom, apparently to Snodgrass, or to a lady beside him." Then Helen once more described a quiet domestic evening before the murder as she prepared herself with the others' help to leave for school in the morning. Smith Ely, Jr., told the jury that he'd sent the note asking Eckel to meet him in the morning the murder was discovered, as it happened; and now again Eckel's mysterious early departure that morning turned commonplace. Augusta described the same evening as Helen had; confirmed that lights had been used in the attic that evening; that they often lighted a fire in the unused attic room and dressed there on cold mornings, and had done this a day or so before the murder, which was why ashes were found in the grate. In response to the questions of her mother's attorney, she said 31 Bond was easily accessible from the rear, the back door being fastened only by an ordinary lock. A desultory cross-exam changed nothing.
A man named Henry Smith was sent, apparently by the court, to inspect "the rear of the premises No. 31 Bond Street. He returned now, was sworn, and testified that "there was a shed covering the piazza immediately under the window of Dr. Burdell's room …" and "a fence which ran up to within four feet of the top of this shed…." And, Smith said, "the door of the stable in the rear of the house No. 31 was fastened by three or four nails on the inside," and finally that he had also "noticed a ladder in the rear of the premises." It could hardly have been clearer that on the night Harvey Burdell was murdered or any other night, probably, his house and room might have been entered from the backyard without much difficulty.
It's said that no one ever knows what a jury will think or do, but when the defense rested, as now it did, there didn't seem to be much actual evidence against the prisoner. To give Oakey Hall the benefit of any possible doubt, the suspicions that had seemed so powerful at the inquest may have been recognized by an experienced D.A. preparing for trial as without much substance: suspicions but not evidence. And yet Emily Sallenbach, the corset-maker's daughter, had sworn she recognized John Eckel as the man who came to her apartment to meet Emma Cunningham on the night of the wedding: I don't understand why she wasn't called. Or Alvah Blaisdell, who could have told this jury who Harvey Burdell was scared to death of. Or why the Cunningham girls weren't relentlessly cross-examined to show this jury the contradictions and memory lapses they'd demonstrated at the inquest. But these wonderings aren't to imply anything, not at this distance; I just don't know. Even the newspapers of the time apparently didn't know; they had the same puzzled questions. The prosecution seemed strangely weak; without heart.
When former Judge Dean stood up to address the jury now, the entire Cunningham family—the mother with her daughters and two small sons home from boarding school —sat together: at Henry Clinton's suggestion? And they listened to Dean ask the jury to acquit without leaving the jury box. Why had Emma Cunningham even been indicted, he asked them, any more than anyone else of the five million people who lived in the area? "He contrasted the position assumed by the District Attorney in his opening, with those which had been sustained by the proof…. Why had they not called Mrs. Demis Hubbard—Dr. Burdell's mistress—Dr. Alvah Blaisdell, Farrell, and so on? … Such omissions were singular, to say the least." He made fun of Dr. Parmly and his dog, and spoke for about two and a half hours. "During some of the most eloquent passages, several of the jurors were tearful. Mrs. Cunningham was apparently much affected, and the young ladies sobbed violently."
A. Oakey Hall summed up for the prosecution, speaking of quarrels and threats, and of how Harvey Burdell's words and actions seemed to repudiate his having married Emma Cunningham. He told the jury that Mrs. Cunningham had asked for counsel before testifying at the inquest, which suggested guilt, he said. At one point, more prophetic than he could know, he said, "… property, property, property, was the burden of her thoughts. She MUST own 31 Bond Street…." He finished by assuring the jury that if they should "give immunity to crime, by acquittal, when circumstances were damning, there will come into the world and be inaugurated that millennial triumph of the powers of darkness of which we have all read in holy writ."
A recess, for which everyone must have been grateful, then Henry Clinton spoke for an hour and a half of the weakness of the case against his client. No evidence of the famous abortion, for example, except from "the slanderous lips of a woman who was drugged with liquor," and who had been bullied into so testifying by the notorious coroner. "But God in His wisdom supplied the antidote to the poison she sought to instil in the jury-box—the face of this drunken cook bore the index of inebriation; it looked, indeed, as if she were seething in bad liquors." So much for Hannah Conlon—who'd been locked up for weeks now: in the precinct jail; in Captain Dilk's house; and in the Tombs; and who hadn't even been paid for her work at 31. At times Hannah may have wondered if the job there had been entirely worth having.
Lots of speeches: Attorney General Cushing was next man up, and began, for the prosecution, "quite forcibly," the Tribune thought, "but soon fell into the stump-speech style of oratory, and made points at some of which a portion of the audience took to laughing. We did not notice a smile on a juryman's or upon the Judge's face."
It was a curious talk. He said he'd "rejoice to see her acquitted if she were not guilty, but there was no sympathy due her merely because she was a woman." The evidence was "composed of a chain of circumstances … which taken separately would seem to be of little importance." But they mounted up.
He defended Hannah. "It would not do to say that because she was an Irish cook she was not to be believed. The girl who earns her livelihood by the sweat of her brow is as much entitled to respect as the one dressed in gaudy colors, who lived in the Fifth Avenue."
He thought a loving wife hearing of her husband's violent death couldn't have been stopped from "rushing downstairs, and throwing herself by the side of the corpse…."
But if what he had to say wasn't enough to hang Mrs. Cunningham, it almost sounded as though that would be all right with him, because he said: "The consequences of a conviction are awful. This
whole family would be ruined. These young daughters lost forever. They must suffer beyond redemption. And these boys, too." But with that the jury had nothing to do "except carefully examine the evidence." If they should convict, it must be "on evidence which was irresistible to their own mind and which carried deep conviction to their bosoms." Whatever was in Attorney General Cushing's mind, his talk was hardly a rabble-rousing call to a lynching.
Finally, Judge Davies charged the jury. "Above all, gentlemen, you must not forget that although you are sitting upon the life of one who belongs to that sex which instinctively appeals to you for your protection and support and sympathy, and which forms the tenderest ties and associations of life, and is always so promptly and willingly rendered, you are to shut your eyes and steel your hearts to these considerations."
He quoted the law on circumstantial evidence; told them what they must consider about the evidence they'd heard, and suggested what weight he thought it should be given. "… you will bear in mind whether her conduct that morning, in dressing herself, in going down stairs, taking her breakfast with her daughters and the rest of the family … returning to her room in the third story, engaging in domestic avocations—if the witnesses are to be believed—whether it is consistent with guilt or innocence"; and whether or not "a strong, stout, active healthy man, as this deceased is proven to have been, in the prime and vigor of life, could have been murdered … by a woman"; and if so, "without leaving upon her person some marks or evidence…. You remember the evidence of the physician, of such marks remaining upon a female longer than upon a male … no such marks were proven…."