THE COURT. You may poll the jury, please, Mr. Clerk.
(The jury are polled, and both defendants answer "present.")
THE COURT. Are you ready to proceed, Mr. Moore?
MR. MOORE. Yes.
THE COURT. You may please.
ARGUMENT OF MR. MOORE TO THE JURY.
If the Court please, Mr. Foreman and gentlemen of the jury I know of no time when a lawyer quite as keenly feels his responsibility as he does at the conclusion of a capital case. That is always true. It is true in one’s home jurisdiction. It is true where they are in their home environments. But if that sense of responsibility can be, added to at all, it is peculiarly added to when one is away from home, when the responsibility for a human life, the responsibility of whether a woman shall be a widow and children fatherless is dependent upon their efforts.
There have been times during the last six weeks of this trial, there have been times during the progress of this trial when I have almost felt as though I were all alien, notwithstanding the fact that I am a citizen of one of the sister states of the 46, and notwithstanding, also, the fact that my mother- is Vermonter, my father a New Yorker.
But 3,000 miles of distance separates we of the Pacific from you of the Atlantic, and naturally those miles have developed peculiar variations in practice, peculiar variations in procedure. Local conditions have developed local practices which in some degree vary from the practices of the Atlantic, but our jurisprudence and our law is that founded substantially upon your own.
Gentlemen, I mention this matter of a feeling of being an alien notwithstanding the fact that I am not an alien, in order that I may bring home to you in some degree the status of the two men at the bar. If I, an American, have at times felt alien in thought and action, then how much more truly alien must the two defendants feel, who are sons of a foreign land, who were nurtured and surrounded in their early life by a foreign culture and a foreign language, foreign ideals of art and literature, and poetry and music, all the things that make life worth while.
I ask you to take these matters into consideration in determining all the issues involved in the trial of this case. Whenever you stop to consider the testimony of any man or woman in this case, if they have been compelled to speak in a foreign language through the medium of an interpreter, or otherwise, if they have in their courage attempted to speak the English language haltingly and uncertainly, I ask that you consider those facts in considering their testimony.
Gentlemen, in any criminal case, the relationship of the Commonwealth upon the one side and the defendant upon the other, is a very difficult one. A criminal cause is based upon an indictment. Out of the four corners of that indictment you are to determine what the charge is and to determine the guilt or innocence of the defendant from the four corners of that piece of paper.
The defendants here are charged with the murder of one Mr. Berardelli and of another Mr. Parmenter. Your responsibility today is to determine whether, or not the Government has measured up to the legal requirements on the question of proof of the legal responsibility of the two men at the bar.
What are the standards of that criminal liability? The Court, in due course of time, will instruct you that the Commonwealth must prove the defendants guilty beyond a reasonable doubt; a proof that directs and commands the human understanding, a proof that would satisfy you upon the most serious things in life. There is no more serious thing in life than the taking of another human life; and you have here to determine whether or not the Commonwealth has established proof beyond a reasonable doubt that Nicola Sacco did murder Mr. Berardelli or Mr. Parmenter.
And in answering this question, gentlemen, please bear in mind this: That no one can speak more bitterly, more critically, more viciously as against the man that did commit that murder than do the defendants' counsel. There is no penalty too great for- the man that pulled the trigger that killed Mr. Berardelli or Mr. Parmenter either of them. We are not here today to condone. We are not here today to do anything else other than to direct your minds to the one question, whether or not the Commonwealth has brought home the responsibility for this crime to these two men or either of them in the cage.
The crime itself was a peculiarly atrocious one, a peculiarly vicious one, and we of the defense join hands with gentlemen representing the Commonwealth in saying to you that if your minds are convinced beyond reasonable doubt, if your minds are convinced in such a manner that you would be willing to act upon the most serious events in life, basing your opinion upon the evidence here, if your minds, I say, are so directed and so commanded with reference to the proof that these men did commit the crime, then there is but one verdict that you can return in this case, namely, that of guilty.
But what is the issue? The mere fact that an atrocious and vicious crime is committed should be no cause nor no reason for visiting the penalty for that crime upon any man other than the guilty man. In other words, no appeal addressed to you upon consideration of public welfare, no appeal directed to your minds upon any consideration other than the one consideration of whether or not the Commonwealth has proved these men guilty beyond reasonable doubt should in any wise meet any form of response in you.
In the course of the arguments had in this case, attention will be directed, I take it, to the peculiar type of mind represented by the defendant, to the fact that the defendant has opinions and ideas foreign to the opinions and ideas of the vast majority of the American citizenship. I say to you, gentlemen, that if you want to kill and stamp out the form of thought that is represented by the defendants and by some of the defendants' friends,-I say to you if you want to stamp out and kill that viper in American life, then measure this evidence by every standard of integrity that you can possibly apply to it.
Render no verdict in this case except upon the evidence. There has been much of discussion in America during the last few years upon the problem of Americanization. There is no better way to Americanize the foreigner in our midst than to administer the law fairly, impartially, without fear or favor or prejudice, impartially -is between the native born and the foreign born.
There is but one way to command respect for law, and that is to administer the law in such a manner that it demands respect, that it commands respect. The worst anarchist in our midst, in our land, is the man, who, by reason of prejudice or malice or ill will or any instinct other than the instinct of fair play and a square deal, administers the law unfairly or improperly, because that kind of anarchist is the man who drags in the mire respect for law. The other man is at least honest, while the other type of mind is at least dishonest.
What we, ask of you today is a verdict based upon the evidence as it came from the witness stand, without fear or prejudice, a verdict today based upon the Court's instructions and the evidence as you have heard it from the lips of witnesses. That and that only is the way to inspire respect for American institutions.
What is the issue in this case? The primary issue and the only issue here is the issue of identification. The one issue is, Has the Commonwealth proved beyond reasonable doubt that the defendant Sacco fired the fatal shot that caused the death of one or the other of these men? Or did the defendant Sacco aid or abet or contribute in any wise to that crime?
Gentlemen, I think I am correct when I say that some 70 odd witnesses have testified for the Commonwealth. When you analyze their testimony, however, it reduces itself to a comparatively small nucleus of solid matter. You remember that the first witness upon the issue, the substantive issues of this case, was the witness Mr. Neal. Mr. Neal, you remember, is the gentleman of the American Express Company who says that he went out of his office, over across the tracks to get the money that came in that morning.
He came back. He says that as he crossed over the roadway going over to New York, New Haven & Hartford Railroad depot, that he twisted himself around and through some seven or eight or more automobiles standing in the roadway; that when they came back, as they came up in front of the office of the American Express, there was an automobile standing there.
You will remember also that lie says that he went on into his office, that he counted out the money that was designated to go to Slater & Morrill, and that some five minutes afterwards he came out of his office, walked down alongside parallel to the building a distance of 20 or 25 feet to the next entrance way and went upstairs to Slater & Morrill. That as he turned in going up he saw a man standing at the entrance way.
Now, who was this man? There can be no issue that this man that
he says he saw standing there was not the defendant.
"He stood there, a man possibly an inch or two taller than I am, slight in frame, very slight, slim, light haired, hair that, well extremely light, blue eyes, very downcast expression like. He had a soft hat of a grayish mixture."
You will remember that later, when asked, not by the Government, but by the defendant's counsel, whether or not he had seen this man or did see this man in this court he answered that he had not seen the man since. So that insofar as Mr. Neal is concerned, he did not see either of these defendants.
But the Commonwealth will tell you they did not call Mr. Neal upon the issue of identification of the defendant, but that they called Neal upon the issue of the identification of the car. At the very conclusion of the examination of Mr. Neal, myself, I, possibly unwittingly, let us say unwittingly, by the last question that I asked of Mr. Neal under cross examination opened the door for the Commonwealth to put in another question, my last question to Mr. Neal being, "What was there about this man or this car that peculiarly attracted your attention? What was it that challenged your mind?"' And instantly there came back under redirect examination the answer that "I felt that my life was in danger. I, Neal, felt that my life was in danger."
That may be true, gentlemen. But the Court will tell you and it is proper for you to consider in determining the weight of human testimony the reasonableness of same. Mr. Neal says that he felt that his life was in danger. I ask any man sitting in this panel this morning if you sir, felt that your life was in danger by reason of a man standing in the entrance way of your place of business with his hands in his pockets theoretically holding a gun, sir, with an automobile standing immediately in front of the door that you identify it is the car that he was connected with and you, sir, felt that that man was about to commit murder and your life was in danger, sir, I ask you, Mr. Foreman, would you in the exercise of ordinary care, sir, take the number of the car? Would you in the exercise of ordinary care?
Why, in an ordinary case of negligence a man looks around to see what the facts are. he at least looks to see when an accident happens what is the number of the car. Neal says that his life was in danger and that his attention was challenged, and yet what did he do? He did not get the -number of the car. He did not call the attention of a single man to this affair, and he had right in his own office a young lady clerk and a man on the wagon who drove up with him to deliver the money. Where are these witnesses? Why no corroboration of Neal from this man that was on the wagon with him?
Well, but the car! The car they say definitely identified. What are the facts? Neal says that that morning the thing that attracted his attention about the car was that it was newly varnished, a brand new car. In fact, he says, "The reason I know it was a 1920 car was because it was newly varnished, just fresh out of the paint shop."
Now, gentlemen, this is the same Mr. Neal who, five hours later, at five minutes after three, sees the car from his window here (indicating), the lower floor here, sees the car going up here (indicating) after shots, and says that as he looked out of this window over here (indicating)-a distance that you can compute-says that he recognized the car because he saw the varnish underneath the dust on the car. He knows it is the same car because he recognized the kind and the quality of the fresh varnish underneath the first. Human credulity stretched to the utmost, gentlemen.
Ah, but our friends of the Commonwealth will argue that during the interval, that during the interval between the hour of 9.30 in the morning and this hour of 3.05 in the afternoon this car had been traveling from Braintree, South Braintree to East Braintree and that over the dusty road that we traveled together it had picked up this dust, of which complaint it made by Mr. Neal that the car was loaded when he saw it.
Again that brings us to another angle of this case, another angle of identification. What is it? Here we have our friend Faulkner stepping in; Faulkner, this man who road on the train up to East Braintree says that he saw a man on the car sitting opposite him or, rather behind him, one seat removed, the defendant Vanzetti.
Now, gentlemen, just one word. Mr. McAnarney will take care of Vanzetti, but the cases of these men are so intermingled that I may be pardoned if I advert for just one minute to Faulkner. You saw the man on the stand. I am not here to direct your attention to anything but one thing. A man who sees but one thing in life, and that thing a fatal thing to another man, a man who says, "I sat in the car and I heard this man Vanzetti sitting behind lean forward and ask the man in front of him where East Braintree was. I heard him do it once. I heard him do it twice. I heard him do it three times, at every station we went along until we reached East Braintree. I saw the man get off at East Braintree. My attention was challenged to the man because of his bag. My attention was to the point that I thought there might possibly be trouble ahead," and yet this man Faulkner, who the Government will ask you to believe in sending a human life into eternity, this man Faulkner did not see a single man on that train that he knew and he had ridden the train every day for years. He did not know the conductor. He did not know the brakeman, and to cap the climax he said there was a man sitting in the seat with him, and when I was examining him I took a chance, a foolish sort of a chance, but a chance a fellow will take.
There was a man sitting over there, a man that I never saw before in my life, a member of the bar of this Commonwealth, as it later developed, and I took the chance and I said to Faulkner, "Was there a man sitting in the seat with you? A. Yes. Q. Is this the man?" You will remember how Faulkner acted. He did not know him.
Ah, gentlemen, Faulkner, the man that knows that this is the man that rode the train, whose attention was challenged because of the possibility of a crime, this man who identifies with the certainty of the stars, did not know the man who sat in the same seat with him, could not say aye, yes, or no. Possibly the gentlemen did sit with him. Gentlemen, you want to weigh that kind of testimony in taking away a human life.
Again there is a peculiar thing involved here. Vanzetti had to get from Plymouth somehow up to East Braintree on a train. He got onto it, but the ticket agent at Plymouth, at Kingston, at Seaside and at East Braintree, none of them saw him. There is no registration of tickets bought on the train. Something wrong, gentlemen. I don't know what. I am not holding the Commonwealth responsible for evidence presented, but gentlemen, your responsibility is to take away a human life on that kind and quality of testimony.
Ah, again they say the car this Buick car, drove over the road that we all traveled from East Braintree to South Braintree, or, at least, that is the inference. There is no testimony. Where is the testimony? You remember that little back road, how it twisted and turned over the hill, how there are houses along that road. Where is the testimony, gentlemen, that the car ever went over that road? Where is the testimony, gentlemen, that the car was ever at East Braintree?
Ah, that brings us back to Neal. Neal says the car was newly varnished, fresh, brand new out of a shop, or, if it was not brand new out of the shop it had been kept in a garage well covered up, well taken care of, but he recognizes the car as the same car by reason of the varnish through the dust. Now, what did he see, as the car went up the road he rushed out of the Hampton house. He saw the tail end of the car, the hind wheels. So when a man gets down to the ability to recognize the tail end of a car 80 feet away at a minimum, the hind wheels, and to add to human credulity of one more inch he says, "Yes, I identified the pint on the rear wheels of those two back wheels as they slid by at 18 miles an hour 80 feet away."
Gentlemen, don't send a man--no New England jury is going to take a
human life upon the character of such testimony.
Let us pass on. Who is the next witness? Mr. Bostock? You remember Bostock is the gentleman who came up the road way here and coming up from the Slater & Morrill factory right along in here (indicating) he met Mr. Berardelli and Mr. Parmenter on the way down. Now, in determining human testimony and the value of it, you are entitled to consider what various men say, having various opportunities of observation.
Now, you remember Bostock, a plain, levelheaded substantial sort of fellow, called by the Commonwealth. He had been doing some millwright work down here at Slater & Morrill. He came out. He walked right by here in front of Rice & Hutchins and on up here where he met the two deceased. He says he saw two men standing in front of Rice & Hutchins, two men standing there. He saw them. Ali, gentlemen, is it significant at all in this case that Mr. Bostock, a plain, solid, substantial type of American citizenship, that Bostock refused to make an identification?
Bostock said "I could not." Why? Remember that to aid Bostock in his vision as he passed here, he was only up here (indicating) when the shooting occurred; and that Bostock at the time of the shooting had just as good vision as did this man Wade.
It can be agreed, I take it, that the scene of the shooting is substantially
about there (indicating), in front of Rice & Hutchins. It can
be agreed that Mr. Bostock was right in here (indicating) at the time of
the shooting, and that immediately following thereafter Mr. Bostock started
this way down the hill (indicating). Then the car came along and
Bostock ran up to the corner of the fence and ducked in behind the fence.
However, while standing here (indicating), he had opportunity of observation.
Now, our friend Wade is down here (indicating). The distance that Wade is from the hydrant to the scene of the shooting is that far (indicating). He makes a partial identification, yet he was farther removed than was Mr. Bostock.
Bostock, a sane, level-headed, intelligent, honest, God-fearing type of personality refused, while this other man made, and at one stage of the game, if the Commonwealth's testimony is to believed, made a partial identification. Bostock refused to make any identification, notwithstanding the fact that he saw these men here (indicating). The men who apparently committed this crime, and passed right square in front of them while they were leaning up against the fence. He had seen the defendants upon repeated occasions since, saw them in Brockton three weeks after the crime was committed, saw them here and refused to make an identification. Ali, but there is another angle to Bostock that I wish to discuss later.
Now, coming to Wade. Wade, you will remember is the man who says that he identified these men at a distance that he placed, in response to Mr. MeAnarney's question, as from 72 to 73 steps. You will remember the size of Mr. Wade, a good solid, substantial type of man, 5 ft. 9 or 10. Certainly he was able to take a three foot step. In the neighborhood, we will say, gentlemen, of from 200 to 225 or 230 feet away.
Wade says from that distance that he identified the defendant by reason
of the short cropped character of the hair at the back of his head.
Now, gentlemen, that is getting down to pretty fine points. Ali,
but we have a peculiar situation with Wade. I am not going to read
very much from Wade, just a line.
"Q. Had the man who was in front of Berardelli changed his position from the time you saw him standing, as you testified, about five feet or something from Berardelli? Did he change his position?
A. He was changing it all the time there as I was looking at him.
Q. In what way, please? A. He was jumping back and forth I should say in a space probably four feet. He was jumping back and forth.
Again the possibility of observation.
Now, do you recall, I just want to get in front of you Wade whether I can revisualize his testimony in some degree.
"Q. Do you recall the next day in Slater & Morrill's factory telling three of the fellows there that you chatted with that the fellows who did the job were 19 or 20 years of age you thought? A. I do not remember that."
Why, gentlemen, is a man had a definite knowledge and a definite opinion, do you think he would testify that he could not remember whether he said a thing so vitally contrary and contradictory to his testimony? If you saw a man 30 years old committing a crime, do you think that next day you would say a man 18 or 19 years old? No.
"Q. Now, do you remember talking to Reynolds? A. Charlie Reynolds?
Q. Yes, and an Italian fellow and two others, four of them there talking? A. I talked with so many I could not be particular to say who I talked with.
Q. Will you now say you did not tell four fellows there the next day that the fellows that did the job were about 19 years of age'?
A. I could not say, because I could not remember so far, so long ago.
Q. 'You were not able at that time at the Brockton police station
to positively identify this man? A. I had a little doubt.'
Q. You so testified at Quincy, didn't you? A. If I remember,
-it is so long ago, I may have said that.
Q. 'Do you say this is the man or can you say positively whether he is or not? A. I do not want to make a mistake. This is too damn serious.'
Q. Have you got anything in your mind, Mr. Wade, about the man you saw tip there 72 or 3 spaces up that street other than that he is a dark complexioned, medium sized man A. No.
Q. 'Will you say he is the man? A. No, I will not say so.'
Q. 'You will not say positively he is the man, will you? A.
I do not want to answer that. Must I answer that question?' "
Now, we have the cross examination under a permission granted by the Court to the Commonwealth of this witness for the purpose of discrediting the witness wholly. Gentlemen, if Mr. Wade is a type of human personality that tells one story at one time in the office of the district attorney of this Commonwealth and another story upon the witness stand, as you are asked to believe, then I say to you that that type of human personality is not a type that warrants you in taking any human life.
Just what are the physical facts? You know, gentlemen. You have been down there. You have seen the physical ground. You know the situation. I will ask any man on this jury, with bullets flying in all directions, with a serious crime just committed, two men writhing on the ground in their death agonies, with a man or two men in the street whom the witness never saw before, is it a physical possibility to make an identification such as Wade claims he was making?
Gentlemen, that brings me to another question that I have not referred to. There is a vast difference between the identification of a man that you know, a man that you have seen before, a man that you had talked with. There may be some peculiar quality about the way I walk, the way I carry my head, the way my shoulders set, some peculiar quality of personality that would enable you, Mr. Foreman, to identify me instant six months or a year or five months hence if you saw me going down the street, the back of me. There is no question about that.
But those are things that do not enter into this case, because remember, that, gentlemen, there isn't a single witness produced by the Commonwealth, not one, who ever saw either of these men before and who claims to make an identification projected upon this acquaintance or previous knowledge of that man. Not one.
And I say this to you in connection with it. I direct your attention to the fact that the defendant Sacco testified that he worked at Rice & Hutchins. He worked there; remember, gentlemen, the testimony in this case. What is it? Miss Splaine, Miss Devlin, Bostock, all the witnesses say that the minute the first shot rang out, the windows of Rice & Hutchins were filled with men and women looking out to see what had happened. The same with Slater & Morrill.
Ah, gentlemen, isn't it significant that this defendant Sacco, who had worked in that factory where there were human beings that knew him, knew the quality of his walk, knew the carriage of his head, knew the form of his hair, knew all those intimate things of human personality, isn't it an interesting thing, sir, that not one of them took the stand to say, "I knew Nick Sacco before April 15th, and I saw Nicola Sacco down in front of Rice & Hutchins with a gun in his hand and grabbing the money?" Isn't it significant that there is no such testimony in this case. Weigh it. Consider it, gentlemen.
Now, there is one such witness, however, introduced by the defense.
You remember the man who was working here in the yards who knew Sacco,
from Milford, intimately, lived in the same block with him; and this man
says, "I ran out into the street. I saw the car go by. I saw
the man on the right hand side of the car. I saw the man and I know
Sacco and it wasn't Sacco."
What are you going to say to it? What is the answer, gentlemen? There is but one answer. Just one answer, gentlemen. Weigh this. You have got to discredit that man's testimony because the accident of birth placed him born in Italy. He was born there. There is no question about it. He comes from Italy. He has known Nick, known Sacco, for five year, in Milford. His reputation for truth and integrity and veracity is not attacked. So far as this record shows, this man's reputation is as clean as any one's is clean. He says it was not Sacco.
The Commonwealth had I don't know how many witnesses possible to be called from here, Rice & Hutchins, who were in a position to say, "We know Sacco. We saw the man." If it was Sacco, they were in a position to say, "We saw the man. We know Sacco. It was Sacco."
I will be frank with you, gentlemen. That would be hard testimony
to meet, extremely hard, terrifically hard. The absence of such testimony,
however, gentlemen, should be most persuasive to your minds that it was
not Nick Sacco there that day.
Now, gentlemen, we have a lady, Miss Mary Splaine. Miss Splaine is in this factory building of the Hampton House, second floor. Miss Splaine did not know Sacco, never, had seen him before. Never saw him later until three weeks had elapsed. Only saw him at best for a matter of seconds, possibly minutes, because, remember, that she says the car was running at a minimum speed of 18 miles an hour, 18 miles an hour.
Just for my own satisfaction, gentlemen, I figured that up. That runs about 1500 feet a minute. Now, you can figure how long a time she had to see it, to see the car, with the man in it. Figure it yourself.
But this lady has all the positiveness and assurance and definiteness
that we are accustomed to find sometimes in the members of the opposite
sex. When she will, she will; and when she won't, she won't.
She knows. There is no uncertainty. She does not say, "It looks
like him." She does not give the physical characteristics that enable her
to say, "I won't be positive, but there is peculiar dualities," and then
pick those out, but this young woman says, "I know. I know.
I am positive. I swear by it."
Now, just listen to the rather infinite detail of this description secured of a man in a moving car on a floor below at a minimum distance of 80 feet away in a space the hypotenuse of a triangle of not to exceed 70 feet, if it was that. Listen.
"Q. Can you describe him to these gentlemen? A. Oh, yes.
Yes, sir. He was a man of, I should say, was slightly taller than
I am. He weighed possibly from 140 to 145 pounds. He was muscular.
He was an active looking man. I noticed particularly the left hand
was a good sized hand, a hand that denoted strength or a shoulder that-
Q. Was that the hand you said you saw where? A. The left hand that was placed on the back of the front seat, on the back of the front seat. He had a gray, what I thought was a shirt. Had a grayish, like a Navy color, and the face was what we would call clear cut, clean-cut face; through here (indicating) was a little narrow, just a little narrow. The forehead was high. The hair was brushed back and it was between, I should say, 2 inches and 2 1/2 inches in length, and had dark eye brows, but the complexion was a white, peculiar white that looked greenish."
Now, gentlemen, that is rather infinite detail for 80 feet away of a car running at 18 miles an hour at least 12 to 14 feet below. 80 or 100 feet away, 18 miles an hour.
And in this connection and in determining the credibility of that testimony, remember that the young woman says, and Mr. Sacco corroborates her that she went down to Brockton once, yes, twice, yes, three times, yes. Why? Was it in order to get the infinite detail of this description, sir, or not? I do not know. But if she got all of these details-as she never got them-if she got them at all to be testified to in this case, if she got them at all for you to consider she had to get them in that matter of seconds from the window there.
Then why did she go down three times to make identification? Then why did she ask the boy, Mr. Sacco, why did she ask him to get down, to contort himself in response to various demands made, lean forward, lean backward, cast his eyes up, cast his eyes down, to go through all these actions?
Gentlemen, that description is built bone and sinew, from top to bottom, not from what she saw from the window but from what she saw in the Brockton police station. You know it. I know it. Gentlemen, are you going to use that kind of testimony to take a human life?
But let me continue just for the minute. She went down with Wade.
On direct examination she said:
“Q. Is that the man you saw at Brockton? A. It is.
Q. Are you sure? A. Positive."
Then let us see what she said under cross. Now again you are to determine the credibility of human testimony based upon what the person could have seen. Now, remember that this young lady says that when she looked out of the window the first time she did not see the car but she heard what she thought in the first instance was the back fire of a motor cycle. Then she says, I believe,-no, I beg your pardon. I beg your pardon. She did not see it. That is one of the mysterious things. Everybody else saw the windows of Rice & Hutchins going up, all the windows up and the windows filled with human beings looking out down the street at the scene of the shooting.
Ah, no, not Miss Splaine. Miss Splaine's eyes were glued on what, gentlemen? On the car? Oh, no, not yet. The car was coming up but had not reached where she was, where she could see it. She is over here (indicating). The car is not yet in sight. It had to get beyond the fence before she could see. She did not see the car. Ah, but did she see anything else? Did she see Levangie? No.
"Q. Did you see the gate partially going down? A. No.
Q. Did you see any human being on the street? A. No.
Q. Didn't you see anything or anybody? A. No.
Q. Did you see anybody standing on that corner before the car came? A. No, sir.
Q. Did you see any one below the gate tender's shanty and the entrance to Rice & Hutchins yard? A. No, sir, I saw nobody.
Q. You do not know whether any one was there or not? A. No, sir.
Q. You did not see any one? A. I did not see any one.
Q. There might have been a dozen people so far as your knowledge goes but at any rate if there were you did not see them? A. I did not see any one there.
Q. What were you looking at before the car came in sight? A. The street.
Q. Now, was there any one at the gate when the car came in sight? A. I wasn't looking at the gate.
Q. You do not know whether there was any one there or not? A. No, sir, I don't.
Q. You know Mr. Lavangie? A. I know him by sight.
Q. You did not see him there? A. I did not see him."
But let me pass on. This Young lady, definite, solid, substantial
identification, positive, unequivocal: “I saw his right hand, I mean his
left hand inside the car. I don't know anything about his right hand."
Just before this then she said she did not see his right hand. Then
I asked her:
"Q. Do you remember testifying on the preliminary examination in this case as follows in response to questions asked I believe by counsel for the Commonwealth, Mr. Adams? A. He stood there with one hand resting on the front seat and the other hand discharging.'
And then I asked her the question whether she said that and then with
equal certainly of the stars she says:
"A. No, sir-: I never said that in Quincy.
Q. What? A. No, sir, I never said it.
Q. Well now, I want to be entirely fair with you. That is your name, Mary E. Splaine? A. Yes.
Q. You were questioned by Mr. Adams? A. Yes," and so forth.
"Q. Do you remember that question being asked of you?" and so forth. Positive that she did not say it, but was that the only thing she was positive about? A. No.
"Q. Tell what you saw and heard."
Again I am reading from the transcript on preliminary examination:
“Q. Tell what you saw and heard? A. My attention was called by the young lady saying, 'They are looking out of Rice & Hutchins. Somebody said, 'Get the number.' I went to look out of the window that faces on Pearl Street, but Miss Devlin was in the window at that time so I looked out the first window on the Pearl Street side which gave me a view of the crossing until my view was cut off by the garage and cobbling shop on the corner."
THE COURT. Do you remember testifying that way?" His Honor asked the question.
"THE WITNESS. No, sir. I did not testify that way.
Q. You did not so testify?" and so forth and so forth.
"Q. This transcript you state is an incorrect transcript of what you said below? A. As far as the 'right hand' of that is concerned l never at any time said, I never, at any time said I saw that man's right hand."
Well, now, if she did not see his right hand, then how in God's name
did she see his left? Do you know. At least her testimony at
Quincy was consistent. It had that virtue. Her testimony here
which she changes from that given at Quincy, she says the testimony given
at Quincy she did not give, but the testimony at Quincy was at least intelligent,
consistent and reasonable while her testimony here has not even that virtue.
"I never said that he was discharging." Here was the question -and the
answer- she give below in Quincy:
“'A. He stood with one hand resting on the front seat and the other hand discharging.' "
I asked her if she said it and she answered:
"A. I never said that he was discharging.
Q. How was it you saw his left hand and could not see anything of the right? A. Because I saw his face and I watched that and I did not look for the right hand.'
Q. Your opinion is he bears a striking resemblance to him?'---said at Quincy, below---
"'A. I could be mistaken.'
Q. You remember so testifying? 'You are not sure that he is the man?' A. No, I did not say that.
Q. You did not say you weren't sure? A. No.
Q. I want to be entirely fair with you, Miss Splaine." That was my question to her, my statement to her.
"Q. I want to be entirely fair- with you, Miss Splaine:
Q. You are not sure he is the man? A. No."' Then I read her the question. Then she says:
"A. I did not make that answer."
Now, gentlemen, something is wrong. I do not know what. I do know that testimony of that character is not the kind of testimony that warrants taking a human life. I might go on through reading you this record referring to point after point and place after- place where the lady's testimony is subject to the same character of examination. The same is true of Miss Devlin. The same is true of all of the witnesses who definitely and with any degree of finality make identification.
There is one witness who you will remember with whom, the meeting of whom considerable attention was given. I am referring to Mrs. Lola Andrews. I am not going to examine her testimony in infinite detail. My time limitations are such that I ought not to without trespassing and not passing upon other matters, but that will be taken care of I assume in infinite detail by Mr. McAnarney . However, just one word.
I examined this lady under cross examination and you will remember that there was some considerable question as to what she had said on previous occasions. You will remember that at the conclusion of the morning examination of her- I asked her whether or not there had been any improper influences of any kind or character attempted to be brought to bear in connection with her testimony. And then you will remember that she made some rather unpleasant remarks with reference to my having offered her a trip to Maine.
Now, gentlemen, I am not going to testify here at all, but I ask you to consider just one thing. First, the reasonableness of it. You remember this, gentlemen: I talked with that woman, as the record shows, on January 23rd. She says I never saw her again. Remember this, also; that she did not go to Maine, and I did not see her again. Remember that is mid winter. January is rather an undesirable time to make an excursion to Maine. But apart from all that if she interpreted something that I said to her in the manner that she wants you to believe, namely, that I made improper approaches to her, then, sir, why didn't your witness seek the district attorney's office of this county? Why, if this young woman on this witness stand, Lola Andrews, if I went to her and offered improper inducements to her to change her testimony or to leave this jurisdiction, then why didn't she seek the advice of the district attorney's office?
Ah, gentlemen, why? Is it a reasonable statement? What are the facts? She says that I wanted her to go to Maine? What for? Why? In the dead of winter, in January, 23rd, and the case going to trial May 31st? Why her lips sealed in all the intervening months? Why this silence until driven, driven, driven under cross examination here on what she had said to me on a previous occasion a statement that upon its face was satisfactory to me? Why, I say, at the llth hour under cross examination just about to close, does she say that I made this offer to her? Is it to be assumed that if I carried the offer into effect she would have accepted? Is that the assumption? Was she waiting from January to May for me to carry into effect the offer that I made to her, as she says? If so, then, sir, you ought not to have special pride in your witness, sir. If she were of the kind that waited from January 23rd to June for me to deliver a trip to Maine to her, then I ask you how much credibility do you ask this jury to extend to her testimony?
If, on the other hand, you are going to consider it at all, consider
it in the light of its reasonableness. Why should I offer her a trip
to Maine? Shy? There are certain photographs that Mr. McAnarney
will refer to in the course of argument, photographs that she identified
here, you remember, X and the XX and the XXX. You remember the confusion
of the witness. You remember the uncertainty. I say to you
that her testimony brands itself as manifestly false upon its face.
Ah, but you need not take my word. When you come to consider her, remember the testimony of Mrs. Campbell, who was with her, and remember in connection with Mrs. Campbell, gentlemen, that the Government went to Maine and interviewed her in Maine, Mrs. Campbell, talked to her there as did we talk to her there., and the Commonwealth decided they would not call her. Why? I don't know. I want you to consider these facts, gentlemen, in determining the extent and degree of the credibility that you are going to give this woman.
Ah, but we come now to the rebuttal. This young woman who took the witness stand yesterday morning. I have forgotten her name. Pathetic, tragic little figure here that took the witness stand to do what? To corroborate Mrs. Andrews. You remember the little girl, a young woman, went onto the stand here. I do not know what her relationship is to the Alhambra rooming house. I do not know. You gentlemen are just as good judges of human character, many of you a thousand-fold better judges of human character than I am. Many of you have had a breadth of human experience and human conduct that dwarfs anything that I have had, but I will ask you, gentlemen, would you want to send a man to the chair on the testimony of the little girl that went on the stand yesterday? This little girl, a young woman who could not remember whether she had ever been in Lola Andrews room or not, who had been to the door once, twice, thrice, four, five, six times and never inside the door, and had not any recollection of what she went there for. This woman who comes we know not from where, whose relationship to Mrs. Andrews we know nothing about, but who comes to attack the credibility of Mrs. Campbell, to attack the credibility of Officer Fay, to attack the credibility of LaBrecque and of Harry Kurlansky, to attack the credibility of Miss Allen.
Gentlemen, I say to you that even though we had not offered a single witness against Lola Andrews, she killed herself on the witness stand by her own personality, but Campbell, Pay, LaBrecque and Miss Allen finished her up.
Gentlemen, remember you are judges of human credibility. You are the ones to determine how much faith and credit you are going to give to the testimony of witnesses.
Now, we come to Goodridge. You remember this fellow, this pool room man upon Pearl Street who says he identified Sacco. You remember that he never saw Sacco until sometime in September when Sacco was arraigned in court, and then, and by the way, just how Goodridge happened to be in this court room at that time does not appear. You gentlemen are just as good judges of why as I am. The record is clear upon that issue, but he was here. Why? He was in this court room for some purpose, an identification. Had not seen anybody except for a second of time.
Now, remember he saw through a window. Remember that Hans Berhsin, the chauffer for Mr. Slater, was in his car right along at the same point. You remember Hans Berhsin, the young man who drove the car, a clean-cut, high-grade young fellow, a man accustomed to automobiles a man accustomed to working on streets, working in traffic and that sort of thing. Hans Berhsin could not identify any one, but this man Goodridge ah, positive, certain, definite, unequivocal. But three men are called by the defense to show that on that day following days he made statements directly and unequivocally contrary to the statements that he made upon this witness stand. Gentlemen, I don't know why these things. You are in just as good position to determine as am I the motive making causes that have created some of this testimony in this case.
I pass on to Louis Pelzer, the man up in the Rice & Hutchins factory
who looked out through the crack in the window and saw Berardelli falling,
and with the divided attention upon the one side he fastened his eyes down
here on Sacco and fixed him in his mind forever as the guilty murderer.
Over here with his other eye he fixed it on the number of the car, and
that number of the car remained forever fixed in his mind, bullets flying
in all directions. He stood up there. A number of cartridges
figure full in the window tearing by. In the name of the protection
of what? I do not know, but I do know that Mr. Reid took his statement
of the shooting. This fellow admits that the statements that we read
to him as being given to Mr. Reid were made by him. He does not deny
it. He admits it. I am not going to read much:
"Q. He told you that his name was Reid. That correct? A. Yes.
Q. He told you what he was, who he was and what he was there for? A. Yes, sir.
Q. And told him on that day, March 26th you told him freely and frankly everything that you knew about this case? A. Not everything, no, sir.
Q. You did not? A. No, sir.
Q. Did you see any of the shooting? A. Why, no, I just seen him laying down. That is all.
Q. Did you so state to Mr. Reid? A. Yes, sir.
Q. Was that a true statement of fact? A. Well, yes, it was.
Q. What? A. It was.
Q. It was. This is a correct statement of what you told Mr. Reid? A. That I told Mr. Reid, yes, sir.
Now, he then proceeds to say question after question, page after page of this transcript, he says, "Yes, I told Mr. Reid that, but it isn't true.” Why? Because, he said, "I did not want to be a witness, and I thought if I told Mr. Reid those statements I would not be called as a witness."
Now, analyze that, gentlemen. He told Mr. Reid that he did not see the shooting, that he did not see anybody shooting, that he jumped into the window and slammed it down immediately, that he did not see any particular act at all. Now, that is his statement to Mr. Reid, that he could not identify anybody, that he could not say it was anybody because be did -not see enough to be able to say that it was not Sacco or that it was not Vanzetti. In other words, we would not have called him on the statement that he gave to us.
Ah, remember, consider this: He says he did not want to be called as a witness and that was the reason he gave this statement to Mr. Reid. Yet what had he done at that very time'? He had given the automobile number, he says, to the Government, and he was the only witness that had it, and he knew it and he knew that the Commonwealth was bound to call him. He had nothing to gain by telling us this story, unless he was filled with malice and prejudice and ill will.
But I want to say to you, gentlemen, that that is not the case. What happened was this, and there are a few questions in the record that reveal the history. When Mr. Reid talked with Mr. Pelzer, Pelzer was not working. Ah, but a few months later he got a job at Rice & Hutchins, and the record shows, as you will remember, that he talked his evidence over with the superintendent, or, rather, the foreman of his department and that he told the foreman his story.
Now, gentlemen, I do not know, but I believe that I think you are entitled
to consider this: To what extent and to what degree did the desire, the
economic need of a job mold Pelzer's mind into saying what they need.
Consider that, gentlemen.
Ah, there he goes, he said,-and I want before I make the remark that I am about to make, just one word on behalf of the district attorney of this county. A lawyer takes the testimony that comes in through his investigators. The pedigree of that testimony, the ancestry of it, the causes that made that testimony, the man that built the testimony, the integrity of the testimony, counsel in the heat of a battle are not always able to thoroughly analyze and thoroughly digest. They may not be disposed to. But my attitude is here, that so far as the trial of this issue is concerned, the attitude of the district attorney's office has been one of unfailing courtesy and unfailing fairness, but the ancestry of some of this testimony, for which the district attorney's office is not responsible, may be subject to serious question. I refer to Pelzer.
And in this connection, let me say Brenner, McCallum and Constantino and one other witness whose name for the minute I have forgotten, who were working right alongside of Pelzer, they all give the unequivocal contradiction to Pelzer's testimony, that Pelzer did not see the number of the car from out of this window at all, facing on Pearl Street. He saw the number of the car from out of this window (indicating) facing up Pearl Street as the car disappeared. Pelzer did not see a thing out of the window on Pearl Street except possibly the falling body of Berardelli through the crack in the window. Possibly that. At most that, and that only. McCallum opened the window a little bit, Brenner at his side. They saw the trouble. They saw the bullets flying and they slammed the window down, and all of them sought cover underneath the table.
Ah, but what did, what made Pelzer change? I do not know. I can't tell you. I can't go into that man's mind, but I do know that when we talked to him he did not have a job and when he testified here he did have a job and he had a job with Rice & Hutchins, and I do know that $15,797 and some odd cents was stolen and that there is an insurance company responsible therefore and that operators on behalf of that company and that company's officials are determined that some one shall pay the penalty. Proper to let the guilty man pay the penalty, but not an innocent man pay the penalty.
I say to you how, where, when and in what manner the infinite detail with which these improper influences may be brought to bear I am not prepared to say. I do not know. But you owe it to yourselves to weigh all of these matters in determining the credibility of witnesses. Who is Pelzer? Why did he testify? Why did he change his statement? Who is Goodridge? Why did he testify? Why did he make this statement? Who is Lola Andrews? Why did she testify? Why did she change her statement? These are questions that you are duty bound to determine.
I have not the time necessary other than to just direct your attention to these few things. Burke was right down there eight feet from the car, rushed to the telephone and put the call into the Brockton Enterprise, talked to Harry Schwartz just before the shooting, a Brockton police officer, rushed back and was by Schwartz' side' If Burke did not tell the truth, do you think the Commonwealth would not have produced Schwartz, a police officer? If Burke did not do the killing that he said he did, and then where is Schwartz to contradict him?
Frantonelli, the young man that walked down the street,, who went immediately
in front of the men standing at the fence rail who ,says without reservation
they are not the men. Pierce, Ferguson, immediately above Miss Splaine
and Miss Devlin, who say they are not the men. Miss Liscomb from
Maine, Miss Novelli, O'Neil, Falconi, Elmer Chase, Mr. Farmer, Mrs. Farmer,
Dorr and Desmond. I have not mentioned a foreign name yet.
I have only mentioned English stock and Anglo-Saxon stock.
But there still remains DiBona. Oh, yes, Foley I did not mention. DiBona, Falconi, the witnesses from the excavation, Cellucci, Magnerelli, Antonello, Frabizio, the other DiBona and Dominick DiBona.
Gentlemen, there isn't a single witness called by the government, who had an unqualified opportunity of observation who gives an identification. Not one. Bostock had the opportunity and wouldn't. McGlone had the opportunity and wouldn't. So on down the line. But it is the Lola Andrews, the Goddridges, the Pelzers that made the identification. Miss Splaine and Miss Devlin I reject, because their testimony is utterly unreasonable. They did not leave the opportunity. They could not. You know it and I know it.
Now, gentlemen, what is the government's case? If you consider this case from the standpoint of the testimony with reference to what took place at South Braintree, there is absolutely nothing to it. But as in every case, the Court will instruct you in due course of time that circumstantial evidence is a proper matter for a jury to consider. Circumstances may point to guilty many times even stronger than the human eye itself as a matter of direct testimony. For example, some one of you gentlemen may live in an apartment house. You are coming into your house at six o'clock in the evening and you see a man rush out. He is all excited. He is all disheveled. He rushes out of the building and hurries down the street. You have not heard anything. You have not heard a thing. You have not seen a thing. All you know is you simply saw a man. You go on up into the building and half an hour later you learn that in one of the apartments of that building there has been a dead body found. That body is still warm.
You immediately and very properly, and connect in your mind what you saw as you entered the building a half hour before, and you very properly ask yourself the question, "Did this mail rushing out of this building a half hour before, was that man connected with this crime," and if you are interested in seeing that the guilty man is brought to justice you immediately notify the authorities and the authorities attempt to locate the man that you saw rushing out of that building.
Now, gentlemen, comes the question of the bringing of this man in and the making of the explanation as to why he rushed out of that building. It may be that he had no connection with the people in that room, did not know them. He may have lived in another floor of the apartment and did not know any of the people involved. The minute that that explanation is made, that settles it very directly.
Or again he may have been connected with these people. He may have known them. He may have had an altercation in that room. I may have been some argument, some discussion. He was angry. He went out in anger or in disgust or to get something or do something quickly and hurriedly, maybe to get a doctor, maybe to do a hundred things. The explanation rendered credible nullifies the criminal effect of the facts. But that explanation must be a reasonable, a consistent, an intelligent explanation. The circumstance unexplained becomes a menance and a danger. The circumstance explained explains away the criminal liability and the criminal responsibility.
The Court, I take it, in its instructions will tell you that in determining the faith and credit and weight that you are to give to circumstantial evidence, you are always to give that interpretation to the facts which is reasonable and consistent, one pointing to innocence and the other pointing to guilt, that then it is your duty to accept that interpretation which points to innocence, giving force and effect to the presumption of innocence that the Court will instruct you upon. In other words that when any set of facts are equally susceptible of being interpreted as guilt upon the one side or innocence upon the other, it becomes your duty under the law giving force and effect to the presumption of innocence, to give that interpretation to the facts which points to innocence.
Now, what do we have here; from April 15th on to May the 5th? There are no untoward facts involved. Suddenly in the night of May 5th the defendants are arrested and taken into custody on a Brockton street car. The thing is that what the defendants then said to the alleging officers, to Mr. Stewart and subsequently to Mr. Katzmann is admitted for your consideration, not because it proves that the defendants committed the crime in question, but because what they said was contrary to the facts and that that false statement is to be interpreted as indicative of consciousness of guilt.
In other words, if you charge Mr. Jones with having stolen your car and Jones on a collateral matter of where he got it, this car, makes a statement that you know is false you very naturally and logically begin to think that Jones probably did steal your car. Perfectly proper that you should, until Jones may explain why he made the false statement of fact.
Now, that is your issue here and that only. It is admitted, uncontradicted
by the defendants and by all parties concerned here that the defendant
Sacco when taken into custody did say that he did intend to go with his
friend Vanzetti to see Vanzetti's friend Pappi that night. Now, those
are the facts. It is admitted that that is a false statement of fact.
I should say it is only partly true. They did intend to see Pappi,
but they did also intend to do something else, namely, to get the Overland
Now, let us divorce our minds from one or two things. First, there is no evidence in this record anywhere, anyway, in any form connecting Boda with the commission of this crime. Nowhere does Boda come into connection with the murders at South Braintree on April 15th. That is clean. Again, there isn't a scintilla of evidence in this record anywhere, anyhow, anyway connecting Boda with the ownership or possession of a Buick car anywhere, anyhow, anyway. Now, those two matters are clarified.
Now, what is the issue? Boda did have an Overland car. He did own that car. Johnson did go get that cir from the place where Boda did live. Those are admitted facts, undisputed. Boda did live with a man by the name of Coacci. It is admitted that Coacci was deported. It is admitted that Coacci was deported for some reason in connection with his ideas or opinions. That is admitted. The only thing in the world that stands here contested is that the defendants made a false statement of fact when they said to Mr. Stewart that they did not go to the Johnson house to get the Overland car.
Now, they did not give a true statement of facts. That is true.
Or, rather, they did not make a complete statement of the facts.
Now, why? That is the issue. Why? Are you to say that
because they did not, they committed the murders at South Braintree?
The only way that the false statement given to Johnson or given to Stewart
with reference to what they were doing that night becomes of any probative
value to you gentlemen, is that if you believe that it points to their
guilt of this particular crime, namely, the crime of murder at South Braintree
on April 15th. It might point to a thousand other things, but unless
you believe it proves to your mind that they committed that murder it has
no force nor effect and should have none to you.
Now, how do they explain it? In the first place, in April, in May or June, 1917 these young men went to Mexico. They violated the Selective Service Act. You and I and this Court are not concerned with the causes that provoked that attitude. Personally I may launch upon it the most bitter philippics, the most bitter attack, but that is beside the issue. They went. They violated the Selective Service Act. Sacco says he was gone three months. The defendant Vanzetti says he was gone a year.
They came back. Sacco comes back, and you heard his record of jumping from point to point from August or September of 1917 until the day after the Armistice was signed in 1918. A half dozen jobs in a half dozen different places in this district, all under an assumed name, his taking his mother's maiden name. All during that time he knew that he had violated the Selective Service Act and was subject to punishment therefore.
On April 25th he went to a meeting in East Boston, in which the question of aiding and assisting one Salcedo in New York was discussed. It was determined to send the codefendant Vanzetti to New York. Vanzetti went to New York. In New York he saw Mr. Quintilino and asked about the Salcedo matter. Mr. Quintilino made arrangements with Mr. Nelles for his employment on that case. Mr. Nelles says that in his discussion with Mr. Quintilino he advised that books, papers, literature and pamphlets in connection with the Radical movement generally should be carefully taken care of and gotten rid of in anticipation of possible trouble in and around about May lst.
Now, gentlemen, anybody who had said that a member of the American bar, anybody who 10 years ago would have said that a member of the American bar in 1920 would deem it proper or appropriate to advise any group of people or men or women in America to take care of any books or papers or pamphlets of whatever character they might have, why, if anybody had looked forward 10 years in 1920 and said such a thing could arise would have been laughed out of court, but that is not the situation in 1920.
You all know that for the last two, three, four or five years May 1st has acquired some significance in American life, at least, in American newspapers, put it that way. You all now in some degree-it is a matter of common knowledge-what has taken place during the last two or three or four years. You and I are not concerned with the propriety of the attitude with reference to matters of this kind of the Department of Justice. That is beside the mark.
What we are concerned in is whether or not these defendants believed on the night of May the 5th that they were in fear of deportation, whether or not on the night May 5th they believed that their lives or their liberties were in danger, whether or not that night they believed that Salcedo, who Sacco says he had read about on the morning of May the 4th, his body he says he read about it having been found on the streets of New York in front of the Park Row building-Sacco, who Mr. Kelley has testified, Kelley says, "I advised Sacco back in January or February of 1920 that I had been told that he was being investigated." Investigated for what? I do not know. We are not allowed to develop what for. But investigated for something. Now, we do know, this: It could not have been for the crime at Braintree on April 15th, because April 15th had not as yet come around. Therefore, it must have been for other matters.
Sacco had these things in his mind on May 5th. The advice from Mr. Kelley, the knowledge that he had in his house books, papers, pamphlets and literature, the knowledge of the death of Salcedo the day before in front of the Park Row building, the knowledge that Coacci and Fruzetti or some other name and a number of others had been deported in this community, the knowledge of all the things that you and I have common knowledge of as having taken place in the last couple of years, further added to and abetted by the knowledge that from June 5th of 1917 he had been a violater of the Selective Service Act, punishable therefore. Whether or not he had those things in his mind on the night of May 5th, made the statements that he did make in fear and conscious of the possibility of trouble by reason of those matters, or whether he made those statements in fear of criminal liability for the crime at Braintree on April 15th.
Now, let us take one issue. The propriety of questioning Sacco with reference to his opinions and ideas by Stewart I am not here to question. That is beside the issue. The point is that Stewart's action, when Mr. Stewart asked Mr. Sacco, "Are you an Anarchist? Are you a member of any club or organization or association? Do you believe in the American Government?" when he asked those questions did he add fuel and flame to the already existing suspicions in the mind of Sacco which accounts for the false statements that he made?
My friend Mr. Katzmann on behalf of the Commonwealth will urge that it did not. He will say, "Why did Sacco deny that he worked for Rice & Hutchins?" Very good reason, gentlemen. As plain as your nose on your face. Remember Sacco's testimony." I worked for Rice & Hutchins under the name of Nick Nusmacotelli." I believe that is it. If Mr. Sacco said to Mr. Katzmann. "I worked for Rice & Hutchins," and Mr. Katzmann went to Rice & Hutchens , and found that he did not work there, then Mr. Sacco had done one of two things. He hid either branded himself as a liar to Mr. Katzmann-in which event suspicion was only added and his danger and his seriousness of his position only intensified-or he would then when Mr. Katzmann came back and said, "The records do not show, Sacco, that you worked for Rice & Hutchens," then he would have had to have said in order to clear the deck, "Why, I had worked there under the name of Nick Nusmacotelli," and when Mr. Katzmann found out he would then be putting himself in line for a criminal prosecution in the Federal courts for liability Linder the Selective Service Act. Simple.
But Mr. Katzmann will then tell you some other things that Sacco did not remember or could not tell. Now, I am not going to pretend to you gentlemen that all that Sacco said to Mr. Katzmann was predicated upon the fear that he was going to get in trouble over, selective service or over his war attitude or anything of that, kind. That is not my position. I am explaining solely and exclusively the Johnson episode on that issue. Insofar as Sacco’s other statements to wit, the most flagrant example, "Did you work on April 15th?” there is a pure matter of recollection. It is manifest from the record that Sacco did his best to tell Mr. Katzmann all the truth, as he was best able to recollect it. And I say to you, gentlemen, if there is any one of you that has ever been mixed up in the preparation of either a civil or a criminal case, any of you, I do not believe there is a man in this box but what if he came to any one of us of counsel in connection with a small sized petty civil matter and we began to check you back on your dates that you would have an awful lot of trouble to tell where you were 30 days, 60 days or 90 days back. It is a hard job, gentlemen and remembers that that boy was under arrest at that time. Is it any wonder that he was uncertain'? Is it any wonder that upon questions of exact dates he wavered?
But that is not the issue. Insofar as the question of his working on April 15th is concerned there ought not to be any question. Why, gentlemen, what have you got to do in this case in order to return a verdict? You have got to say that the whole Kelley family lied. You have got to say that some 20 odd witnesses called in connection with various phases of the movement of the defendant are all liars, unequivocal, unmitigated, unfaltering liars, and on top of that you have got to say that we of counsel had aided, abetted, advised, encouraged this perjury.
Gentlemen, the last witness that we put on the stand yesterday morning. Accident, pure and simple. The history of that witness as I got it the night before, 2 o'clock in the morning, is some interesting matter and I am not permitted to give it to you, but remember Mrs. Sacco said the day before, the last witness in the afternoon, you remember Mrs.Sacco said that Mr. and Mrs. Iacovelli were at their home the afternoon or the noon hour of April 15th when Sacco was down to get his passport. When she got off the stand immediately after court we started the checking of that fact. What was the result? Yesterday morning Mr. Kelley takes the witness stand and shows his letter of April 8th to Mr. Iacovelli and asking Iacovelli to come to Stoughton to take the place of Sacco, who is going to Italy. April 9th Mr. Iacovelli replies in his own handwriting to Mr. Kelley saying, 'I will be in Stoughton on Thursday, April 15th."
Ah, I was the most happy man in the world when I found that the 3-K Shoe Company, contrary to general practice, keep the envelopes in which the letters came, special delivery, post marked April the 9th, 1920, the original letter with the original post mark, and Mr. Kellev says that Iacovelli came, and Miss Kelley says, George Kelley and Mrs. Sacco all say the same. Are you going to brand all of these people as perjurers?
Now, coming back ,again just for the minute. Mr. Katzmann is going
to say I that a man I don’t know. I ought not to say this.
I apologize, Mr. Katzmann. I do not know what he is going to say.
I wish I did. I wish I had some capacity to read his mind and dispute
what he is going to say. I can't. But I can imagine, and I
apologize if my imagination is in error. I imagine that he is going
to say something about the kind of a man, the kind of a heart, the kind
of soul of a man, the kind of the character of a man who deserts the colors
and goes into a foreign land during a time of stress and strain inside
of our own states. I do not know just how he is going to phrase it.
I do not know. I wish I did, but he is going to in substance and
in effect, I believe, say that a man who is so foreign to the sense of
American patriotism as to do that sort of a thing is a man whose credibility
you can't believe, whose integrity upon the witness stand is subject to
question, whose evidence you are bound to discredit.
Gentlemen, I want to say this: Personally I believe that is a tragedy, a serious tragedy in our national life that men of this stamp are created. I do not like it. I know you do not like it. None of us like it. But they exist. They represent a peculiar type of zealot ever willing to suffer any sort of liability to carry their ideas into effect.
It is rather interesting to note that when Mr. Stewart questioned Sacco about his Ideas Sacco said, "I am a little bit different. I am not quite satisfied. I do not quite like things as they are."
Now, Mr. Katzmann may advert to the character of the books that are in question here as to whether or not they constitute the substance that would go to create human fear in a human mind. I do not know, gentlemen. Let me see those books, please. These books are in a foreign language. Some of them have been translated into the English language. They represent social and economic thought,-they represent a brand of thought I take it judging solely from their titles that is foreign to your experience and to mine. But Mrs. Sacco said something under her own examination that adds strength and force and vigor to the statement of Sacco, namely, that she burned a lot more books, that this did not represent all the books. The titles of some, however, may be significant. I am not attempting to give the Spanish titles. One is "The Grand Revolution," by Kropotkin. Another is "Social Control," by Merlino. Another is a book by Zola. Another is "Religion and Science," by Vella and another book by Kropotkin. The other I am not going to attempt to give, any one else other than those I can with a limited knowledge of the language give an attempted interpretation. "Concerning Before". "The Ideal of the Workers," a pamphlet. "Concerning Law and Authority". "Letters on Socialism". "The Social Transformation", and so on.
What is in those books I do not know. I can't read it, but I do know that Mrs. Sacco immediately following the arrest of her husband, in the exercise of what she considered her best judgment, in view of the decision reached on April 25th and May 2nd, May 3rd, May 4th, that Mrs. Sacco burned up some more. Why. I do not know. The tragedy of American life that anybody should be in fear of a book, but was she right or wrong and Nick told the story that he told because he was in fear of Salcedo’s death, his friends deported, and so on.
Now, gentlemen, that is the Government's case in its broad, general terms. The time limitations fix me. I cannot go any further. Just one word. Bosco, Dentamore, Williams, Affe, Kelley, Mr. Hayes all have told you the movements of Sacco on April 15th. You have got to say that they have all committed perjury. You have got to say that these men who know Sacco, that these men who have talked with Sacco, that these men, some Americans and some Italians, that they have all stooped to the commission of perjury, to the dragging of justice in the mire in order to save this man, and you have got to say that Mary Splaine, Lola Andress and this fellow Goodridge, and Neal and all of these people who never saw the defendant before-and when they did see him, saw him for a matter of seconds-that they are right and that the defendant, Dentamore and others are wrong.
There are some other questions, many, that I would like to discuss. The issue of the government, you have heard the testimony of the experts pro and con, back and forth. Gentlemen, if the time has come when a microscope must be used to determine whether a human life is going to continue to function or not and when the users of the microscope themselves can't agree, when experts called by the Commonwealth and experts called by the defense are sharply defined in their disagreements, then I take it that ordinary men such as you and I should well hesitate to take a human life.
Particularly is this true when you consider the fact of the ancestry of these bullets and these shells. Remember that the shells were found on the street. Mr. Bostock said he found three or four, he did not know how many, and he put them in somebody's desk up at Slater & Morrill's and then Mr. Fraher found them sometime later. He did not know where they came from, except that he found them in the desk, and so on.
Gentlemen, render a verdict here that is a verdict that goes to your consciences, remembering always that it is not your function here to decide whether or not the defendants' opinions are right or wrong. That is not the issue. I am carrying no brief for those opinions. I am carrying no defense for their ideas, but I am saying to you that you can render a verdict here solely upon the evidence, weighing every circumstance from all of its angles. There can be but one verdict returned in this case.
Now, one more thing, gentlemen. You are duty bound to give, each and all of you your individual judgment to this case. You are duty bound when you go into the jury room to debate one with the other, to answer legitimate and proper argument one to the other, to discuss in a spirit of fairness and justice the issues in this case, but if after all discussion is had, if after all legitimate and proper arguments have been considered, if after full and mutual consultation one with the other there is one or more of you who have an opinion at variance with the others. then under your oaths as jurors you are duty bound to return a verdict in accordance with your conception of the law and of the facts of this case as you view them and as proven from the witness stand.
In other words, let no consideration of public policy, let no consideration of compromise, let no consideration of anything other than the proven evidence on the witness stand direct and command your minds. Gentlemen, please, I beg of you, and I speak on behalf of the defendant Sacco and I feel I may say on behalf of the defendant Vanzetti, I beg of you, gentlemen, one and all, please, no compromise verdicts in this case. There can be but one verdict here, either murder in the first degree with the death penalty or not guilty, one or the other.
The man that committed that crime must go to the chair. I beg of you in the jury room no argument addressed to second degree murder anything else less than first degree. If that boy committed this crime, there is no penalty too severe to visit upon him. But when you are rendering your verdict, remember that you are duty bound to return a verdict based solely upon the law, solely upon the facts.
And, gentlemen, the Court will conclude this case with his instructions. We of counsel and the Court cannot divide or assume your responsibilities. You are the responsible men. You are the judges of the facts. The Court gives you the law, but you only you can pronounce the verdict upon facts, and when you pronounce the verdict, gentleman, remember that you are duty bound to give it in accordance with the facts as you believe them to have been found on the witness stand.
I thank you.
THE COURT. Take a recess, gentlemen of five minutes, You ran over your time 20 minutes, Mr. Moore.
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