MR. KATZMANN. I should like, if your Honor please, to conclude
my argument this afternoon.
THE COURT. All right. You may have until 6.20, if you need it.
MR. KATZMANN. That is one-half hour less than the defendants had. They had between them four hours and a half.
THE COURT. All right then. You may have until seven, then, the same length of time.
MR. KATZMANN. I shall not use it unless absolutely necessary.
May it please your Honor, Mr. Foreman and gentlemen of this jury, I congratulate you sincerely that the hour of your several deliverances is about at hand. I can conceive not only of no more important duty that may fall upon the shoulders of citizens of the county of Norfolk, but also no more trying duty than you have been performing for the past long six weeks. I congratulate your Honor, both these defendants and the Commonwealth, may I have the honor to repeat, because of the quality of the service of you 12 men; and I know that I bespeak, as well, the thanks of the defense as I do of the Commonwealth in saying that so far as12 human beings could with the utmost devotion to duty perform a duty, from your very bearing ini the court room it his been apparent that you were determined to do your duty and to do it to the utmost, and your countenances bespeak the intelligence which assures us that you will do it well.
In congratulating you that the hour of your deliverance is at hand, I want also to congratulate my office, and self-congratulation plays a part in that, that as you are about to assume this momentous of duties, the burden is about to be lifted from other shoulders. For 14 months, gentlemen of the jury, our office has been weighed down with the responsibility that attached from a series and train of events over which we had no control, and God willing, had we been able to control it, would never have come to our office door.
My brother has said that this is a rare opportunity for a district attorney. I say, to the contrary, gentlemen, that if I could have directed the train of events in South Braintree on April 15, 1920, 1 never would have had that opportunity. Heaven only knows how I have been borne down by it to the utter distraction of the routine work of the office for these long 14 months. You have had it for six weeks, gentlemen. Our office has had it for more than a year.
And while I am speaking gentlemen in passing and before opening either upon the law or the facts in my argument, I want to congratulate both of these dependants upon the quality of the defense that they have had through the medium of two trained, skillful and experienced attorneys. They could not be more ably defended. Neither could they be defended with greater devotion to duty than have the gentlemen who have been representing them exercised and performed. But above that and above the fact that there are 12 good men from Norfolk County who are not going to be swayed either by prejudice of by fear, nor, worse than anything else, by emotions that would make them fail in their duty, you 12 men, this trial has been presided over by a Justice of eminent person attainment.
It is to be assumed, gentlemen of the jury, that a lawyer, a member of the bar, who is called to the high office of Justice of the Superior Court, will have, as a matter of course, learning commensurate with that office, and that is preeminently true in the case of the learned justice who here presides. But there are some qualities, gentlemen, that even a Justice of the Superior Court cannot acquire, he cannot gain by experience, and those qualities must be born in him, and I refer above all to the quality of real human nature; a kindly heart and an inherent sense of justice that cannot be swerved from an impartial performance of duty to both parties to a case. And in that fact, perhaps more than any one fact, more than the presence of you men, more than the presence of able counsel, are the defendants to be congratulated that they have such Justice presiding over their destinies in a matter that has involved, as has been said over and over again, their very existence.
May I say a word to you, to you gentlemen, about your duties to correct an unconsciously erroneous statement of the law given by my brother Moore. When You gentlemen retire to your jury room to perform this most sacred of duties that may fall to the lot of 12 human beings, the matter is not to be decided save upon your consciences and upon the evidence. As he said, and well said, if there should come a division of opinion among; you, our Supreme Court has laid down the law that while a juryman should never, never yield where he has a reasonable doubt-conscientiously, that is not the whole rule of conduct that the Supreme Court has laid down for his guidance. It is further than that, and the Supreme Court has asked those who may find themselves in a well defined minority to give heed to the opinions of their fellows and to consider if they, the minority, possess such learning, such experience and such mental attainments that they must be right and the others wrong and to hearken to the voice and to the argument of the others and to consider well the fact that others and others in majority have a different opinion, whichever way that opinion may be.
That, as I conceive it and as I understand the law is the true law of the conduct of jurors in their deliberations. And that rule never requires a juryman to give up a conscientious doubt, if that be his difference of opinion from his fellows, but he must look to his fellow, he must listen to them and he must consider if he personally, or if they-if he has fellows with him in the minority-are possessed of such superior wisdom that they are right and the others are wrong, and if they find that not the case, to yield when they so find that fact.
I have listened to the arguments of learned counsel through a long morning, and I have wondered why it was that the tremendous force of personality and argument exhibited by both counsel has been directed almost entirely, gentlemen of the jury, to the defense of the defendant Sacco and almost not an appreciable portion of either argument devoted to the defense of the defendant Vanzetti.
Is it, gentlemen of the jury, that neither counsel who have argued to you have confidence in the alibi of the defendant Vanzetti, and that it is hopeless in their opinion, and that all their tremendous effort and intelligence must be directed to pulling out a verdict in favor of the defendant Sacco if they can, and that the alibi of the defendant Vanzetti does not satisfy these two gentlemen themselves? It may well be, gentlemen, but whatever the opinion of counsel, myself or the defendants' counsel, that is of no consequence to you. We are not allowed to express our personal opinions to you. It is not evidence. You are the men who are going to determine what the facts are; and I ask you to consider, in the light of what has transpired this very morning in this court room, if that is not a fact that you may well find.
It is akin, gentlemen, of the jury, to the opening made by other learned, skillful and experienced counsel. He never whispered a word to you, gentlemen, when he opened this case, as to where Vanzetti was on April 15th. And more than that, gentlemen, he never even suggested on the day that he opened this case for the defense, that they were prepared to admit that the defendants, Sacco and Vanzetti, were down in West Bridgewater at Simon Johnson's house on the night of May 5th, and if I forget everything else in my argument in what I conceive to be the orderly presentation of it, I hope I won't overlook that, gentlemen, because it is of tremendous probative force. The acts of counsel, gentlemen, bind the defendants themselves.
Before I pass the facts, may I trespass but a short length upon what is peculiarly the domain of the Court himself, an exposition of such law as may seem to be important to you in the determination of fact. It has been said by my brother, and well said and beautifully said-he is a credit to the West from which he comes, that portion of the country that has produced many orators of note, and he well uphold the standard of the West from which he comes this morning-it was said by him that this is first degree murder and that there should be no compromise. Gentlemen of the jury, when Mr. Williams opened this case, he said the same thing, and in closing this case I say, in behalf of the Commonwealth of Massachusetts to these two men, it is first degree murder or it is nothing. The Commonwealth seeks no compromise. The Commonwealth demands that you make no compromise. The Commonwealth demands that if you are satisfied beyond a reasonable doubt that these defendants, either one of them or both of them acting jointly, took the lives or assisted in taking the lives of Alessandro Berardelli and Frederick A. Parmenter, that you find them guilty of the full offense; and if we failed to satisfy you beyond a reasonable doubt, that you acquit them. There is no compromise between those two positions.
The evidence is overwhelming that whoever perpetrated this atrocious murder, these atrocious murders, did it with deliberately premeditated malice aforethought after long deliberation and long waiting for hours to commit these deeds. We want no compromise, Mr. Moore. We wait the whole thing in the interests of justice, or equally in the interests of justice if we have not satisfied you, acquit them.
A mere statement of the elements of first degree murder from me is sufficient. First degree murder may be one of several things, and this may come under the category of three. A crime punishable with life imprisonment, committed with extreme atrocity or cruelty, with deliberately premeditated malice aforethought, and the last thing, the last one is the most common basis in law for first degree murder.
It requires no analysis of those words to explain them. The men who did these murders, gentlemen, were waiting from at least 9.20 o'clock in the morning of that day until about 3 o'clock for the opportunity to kill and to rob. And if that is not deliberate premeditation, if it is not thought upon before, and if it is not the act of extreme malice, when there never was and never can be a first degree murder within the meaning of the law in this Commonwealth.
One other thing, and one other thing only I conceive to be necessary to call to your attention in the law. My brother McAnarney said in his argument this morning, that the defendant Vanzetti would be foolish to take tip a .38 calibre Harrington & Richardson revolver in place of a Savage automatic. Now, if my learned friend and brother can see that the Commonwealth has contended or ever will contend to the end of this case that the defendant Vanzetti fired any Savage automatic at either of the two decedents, he misstates the evidence and our purpose.
We say in Plain English that on the evidence we have proven to you beyond any reasonable doubt that the defendant Sacco fire a bullet from a Colt automatic that killed Allesandro Berardelli; that some other person whose name we do not know and who is not under arrest, in custody or upon his trial, killed the man Frederick A. Parmenter with a Savage automatic, and that that was not the defendant Vanzetti.
That is as plain as I can make it in English. We say that the defendant Vanzetti, although we have offered no evidence that is controlling that he on the day in question fired any fire-arm that took the life of either of these men, that he was there actively aiding and abetting and assisting Sacco and the other man who were actually doing the killing, and that his presence there for the purpose of assisting, standing ready to stand by, to render such assistance as might become necessary in the events that might immediately follow the taking of life, makes him in the contemplation of the law just as guilty as the defendant Sacco, who is the man we say killed Alessandro Berardelli.
Who it was that with a Savage automatic fired three bullets from a Savage automatic into Berardelli and two into Parmenter, we do not know and we have offered no evidence on, except that there was such man, so that the force of my brother's suggestion that Vanzetti were foolish to give up a Savage automatic to take a 38 revolver is of no force in the light of that claim, and I say to you, gentlemen of the jury, it is substantiated on the evidence.
That we do say to you is that we expect you find upon all the evidence that the 28 Harrington & Richardson revolver that was found upon the defendant Vanzetti was the 38 Harrington & Richardson revolver that poor Berardelli tried to draw from his pocket to defend himself and before he sunk to his knees with the blood coming out of his mouth dying on that sidewalk that afternoon.
That is what we say to you and we offer it not at all, gentlemen, for
the purpose of saying that Vanzetti used it. There were six bullets
and every one of them were automatic bullets, and the Harrington &
Richardson cannot fire an automatic bullet. We offered that evidence,
gentlemen, to show you that some person took that revolver off the person
of the dying Berardelli. And that ties up with the other evidence
the presence at the scene of the crime and to assist with the defendant
Sacco, who was say is the man when Berardelli was sinking down, when they
were in a struggle with each other and the defendant Sacco's hands were
on the shoulders of Berardelli, took the gun and it eventually came into
the possession of his co-defendant Vanzetti.
And as I have got so much to discuss in the way of evidence and so little time really in which to discuss six weeks' evidence in a little over four hours and a half and that I might not forget it, I say to you gentlemen, aside from the Iver-Johnson testimony, that the evidence of a witness produced by the defendants themselves corroborates and clamps down the Commonwealth's claim, and I refer to Peter McCallum, the man working in the "K" department of the Rice & Hutchins factory.
He says that when he raised the window in the middle trio and looked out from the second floor, he saw a man whom we have shown and will argue was Sacco, with a gun answering the description, a bright nickel gun, gentlemen of the jury, in the left hand of the man putting in the auto a money box. And that is from the lips of the defendant,-from the defendant's own witness, Peter McCallum.
I do not say, gentlemen, that McCallum said that Sacco was the man. If he said anything, he denied it. Whether he said anything or not is for you to say. I do not claim that he said that was Sacco. What I do say is that he says the man who was beside the body of the dying Berardelli putting a box on the left hand of the auto in to it with his right hand, holding in his left hand a gun that answered the description of a bright gun, and it was an automatic that had killed Berardelli. The automatic of the assailant of Berardelli was then in his pocket because he had to use his right hand to put the box into the automobile. In his left hand he had neither the time nor the opportunity to dispose of the gun that he had just taken from the dying Berardelli. We say that man is the defendant Sacco.
Now, gentlemen of the jury, what are the facts in these long cases? That is all you are here for, gentlemen, to find the truth, to find it within the meaning of the law of Massachusetts, to find guilty if you find the facts prove guilty beyond a reasonable doubt, to acquit if the Commonwealth has failed to sustain that burden, and that is the last explanation of the law that I shall make to you.
Those words "proof beyond a reasonable doubt" almost define themselves. Not quite as a legal Proposition, but if you bear emphasis upon the word "reasonable" doubt then you understand the phrase. What is a reasonable doubt in everyday English? It is the doubt, gentlemen of the jury, of a conscientious jury man who is seeking to find out the truth and not to avoid it, who is doing all that his intelligence and his conscience can aid him in doing to find out what the true fact is, who is conscientiously and courageously, gentlemen, trying to find the truth.
And if in the exercise of those faculties of the mind and of the heart he is unable to determine the truth, then he is possessed of reasonable doubt. And if he does not find himself in that situation and with courage and determination and conscience he has found the truth and it makes for guilty, it has been proven to the satisfaction of that juryman that the defendant or the defendants are guilty beyond reasonable doubt.
Those words, gentlemen, are easy to understand. It is the Plain English of it. You know what truth is. You know what conscience is. You know what intelligence is. And you know what courage. Those are the qualities you need. You need no more, and I know that you are possessed of them in large degree. Exercise them, gentlemen, and when you find the truth, declare it like 12 good men of Norfolk County, and you are satisfied beyond reasonable doubt then
What is the defense in these cases? It is three-handed, gentlemen. It started out on the day of the opening by the express words of my brother Callahan, as being a two-part defense. It has become a three-part defense, gentlemen, because of the exigencies that have arisen in the trial of this cause since he made the opening. The ones to which he referred were first; the evidence of witnesses that neither of these men were the men whom those witnesses saw in the escaping automobile. And the second part of the defense as outlined by my brother Callahan was that these two defendants were respectively some place other than in South Braintree at 3 o'clock that afternoon.
There is a third defense, gentlemen, that has arisen, and referring again to what I said to you in passing that I hoped I would not forget it, the third defense is an explanation or attempted explanation that would satisfy 12 honest men of what otherwise is the most damning evidence from consciousness of guilt, and I refer to what transpired, first at the Johnson house, secondly, when Officer Connolly went in to arrest these defendants in the car, and thirdly, to the series of unmitigated falsehoods that the defendants severally told the officers of the law, including myself, and third, the unmentioned defense when this case was opened is the one to which now for days they have been devoting their utmost effort to satisfy you that it was from consciousness of guilt of a trivial offense and not consciousness of guilt of the commission of this tremendous and atrocious crime of taking the lives of two innocent men with whom they had no quarrel, against whom they could properly have no basis for enmity, and in cold blood to take, steal and rob money belonging to somebody else. A Common motive, gentlemen, among murderers, to rob and to steal and if need be-and even if not need be-to take the lives of human beings, to steal $15,000. worth of money belonging to a capitalist, the Slater & Morrill Company.
Who have been the witnesses whom they have produced to show that neither of these defendants was in that bandit car either before, during or after the commission of these heinous crimes? They have produced a number of men from the excavation where now the restaurant stands substantially opposite the exact scene of the murders.
I will not attempt to reconcile the testimony of those several, perhaps eight or ten witnesses from the defense who came from this restaurant excavation one with the other, gentlemen, because no human mind can reconcile the divergences of testimony of those several witnesses. They simply can't be matched together, because one puts a hat on the man to the right of the driver, another a cap, and another no head covering. One puts a light-haired man there. One puts a man dressed in army clothes, and another in civilian clothes. One puts a mustache on a man, and some other man who follows him and describes his appearance takes away the mustache.
They can't even describe the place where these unfortunates died, with consistency. If you will but recall, gentlemen, with permission of counsel I put on here the various places where Parmenter dropped, and that spot varied every time a witness went on who pretended to say he knew where Parmenter dropped. He dropped, all the way from out in the street to back into the collar, back into the excavation. Reconciliation of the testimony there is utterly impossible. And it may be well that it served the purpose of the defendants to seek to confuse you gentlemen in the matter of description.
But there are two witnesses who testified for the Commonwealth, if you believe them, who give you the reason why nobody from that cellar who was there working digging that afternoon can tell you what happened, how it happened, where the dead man or how he died, and the reason is a common sense one, because every single laborer who was in that cellar the minute the firing started, but particularly after the moment when poor Parmenter started to go across to escape from his assailant, who was then busily engaged in shooting him in the back, ran back to the Nichols' house as fast as they carry them, turned their backs in the protection of their own safety and lives and of course could not and did not see what happened, and that is what Mrs. Nichols herself says.
Is there any reason why Mrs. Nichols should come on and construct a fabrication here? What interest has she? She does not know who did it herself, does not pretend to say. She said she was too far away to make an identification, except that they were men rather than women who were doing the shooting, and she says that every laborer dropped his pick and his shovel and ran as fast as his legs would carry him when the shooting started, and that is borne out in part, gentlemen of the jury, by the witnesses from the cellar themselves, because you will remember. that every part of the excavation except the rear was at street level and there had been dug down only three feet, and there was no real place for them to hide, and as prudent men anxious to save there own skin they ran, and that is why the eight, ten or a dozen of them tell eight, ten or a dozen different stories as to what happened in front of the restaurant.
But Mrs. Nichols, gentlemen of the jury, is not the only witness produced by the Commonwealth who so testified. You remember Morris Colbert who lived in the house directly south of the Nichols house, and you will remember that, doubtless from the same motive that the laborers acted from, his good wife locked the door on him when he heard the shots and wanted to go out and see what was happening and she would not let him out, and doubtless that is a substantial reason why Morris Colbert was able to walk up a live human being and tell his story. Had he gone out and attempted to interfere in this murder to rescue either Parmenter or Berardelli or to seek to apprehend the criminals who had done the murders, he, too, might have been added to the list of dead men. And Morris Colbert says that he saw every laborer run back in the direction of the Nichols house when the shooting began.
And they produced young Frantonelli, who had been interviewed at one time by the Commonwealth. You remember him, gentlemen, of the jury, doubtless, as an early witness, early in point of time for the defense. He was the young man who had occasion to go two or three times a day, I think he said, from the Slater & Morrill factory up the Slater & Morrill office, and that shortly before three, in connection with the performance of his duties he went by the fence in front of the Rice & Hutchins factory and that he there saw two men leaning against the fence and those two men, gentlemen, are the two murderers. There is no question about that upon all the evidence. The men who committed the murders were those two men who were leaning up against the rail in front of Rice & Hutchins for five, ten or fifteen minutes before the murder was done.
Do you remember Frantonelli's testimony? That there may be no
mistake about it and that I may not trust entirely to my memory, I want
to refresh your memory and call it to your attention in some detail.
In the first place, you remember, him as a young man and you will remember
the discussion that was had between his examiner, myself, and Frantonelli,
,is to the nationality of these two men. Nationality is not an issue
in this case, gentlemen, except as a means of identification. For
that reason and that reason only is Frantonelli and his recollection and
his desire to tell what actually occurred to be relied on.
Listen to this: He said that he passed men on the fence from the lower,-going from the lower to the upper factory. He said one was dark complected, shabbily dressed and needed a shave, and he said that one week later he was taken to the town hall in Braintree to see a man there under arrest, and you gentlemen know upon the evidence that the only man taken under arrest in connection with this crime to the Braintree town hall was a man who has never yet, gentlemen, stepped a foot inside this Court room, Ricardo Orcciani.
He was arrested May 6th, the day after these defendants were arrested, and he still remains, gentlemen of the defense, a mystery to you 12 men. You have heard of his being out in front of this court house during this trial. You have heard his name mentioned more than that of any other person in connection with this trial save the two defendants, and Ricardo Orcciani has not yet walked upon the witness stand, and I will discuss with you some of the reasons why Orcciani, the associate of these two defendants at the Simon Johnson house, at the Sacco house, a friend of Boda and a friend of both these defendants, never for some reason, gentlemen, has been permitted by the defense to take the stand.
I want to recall to you the accurance of young Frantonelli, or the lack of it, in describing to you gentlemen, that these two men who were at the fence were English speaking men and not "wops" as the Commonwealth claimed he said when interviewed by them, and the description of those who otherwise described these two men that they could not possibly be identified as either of these defendants.
And you, Mr. Girard and you Mr. Atwood, will remember it particularly, because he was the young man who said he looked at them for a second and then gave a description that put the description of any other witness as to either of these defendant of anybody engaged or occupant of the car in the shade.
And I gave him notice of what I was going to do when I stood here and
said I was going to stop him opposite two of the jurymen and I was going
to ask him to describe them. That was more than he knew the day when
he came along, a pleasant day, no occasion until he got-heard an altercations
a casual glance, and he turned just as you and I would turn to see what
two men were having about. He knew in advance when the test
was put upon him that he was going to look at two men in this row and he
looked at the pair of you, and it was a magnificent description he gave,
and he had a very full and large and long second.
When he went back on the stand there is no question, is there, in the minds of any one of you gentlemen, that when I was standing over and requested him not to look at you he could then see you out of the corner of his eye, and this was his description. You were seated. Marvel upon marvels. Two of the jurymen were seated. What power of conception that man had. You have not any hats on, gentlemen. Sherlock Holmes at his best out-done by young Frantonelli.
And then I have forgotten what he said about you, Mr. Girard, you remember it. He got the wrong color shirt of you; he got the wrong color of clothes, and Heaven knows what else he did not do to you, and he is the man that says the defendant Sacco or neither of these defendants was one of the two men there at that fence.
Have neither of you gentlemen grown a mustache since this trial opened: Well, he said you were both sitting down, with no hats, that you had on blue ties, one of you had a mustache, and the other had a chain; and he is the star witness produced by the defense to show that neither Sacco nor Vanzetti-and we do not claim Vanzetti was sitting on the fence on all our own evidence-neither of those two men was of the age of Vanzetti nor grew a mustache, so of course, it could not have been Vanzetti, but we say and ask you to find Sacco was one of those two men, and Frantonelli is the only witness produced to show you that it was not.
Do you remember that I called his attention to the fact that when interviewed by somebody representing the prosecution I said that he said, "I could not understand their language." and you remember his reply here, that "if I said I could not say" pardon, me I have misquoted the evidence, I said he could not understand the language, and what I asked him was, "Could you say what their language was?" and his reply was, "If I said I could not say as to their language, it was untrue."
A young man, gentlemen, who most woefully failed in as fair a test as a man could ask to disclose to you 12 men his power of recognition, his power of recollection and his ability to remember, to picture on his mind the physical appearance of any two men. His identification of you two gentlemen of the jury was nothing sort of ludicrous.
And then the other class of witness were the workmen in the section gang who were working somewhere south of the crossing. You remember, gentlemen, that there was some 16 or 18 or 20 men who said they were working on tracks 4 and 5, south of the crossing. The Commonwealth until yesterday produced nobody from that gang, and it requires no reasoning on your part, gentlemen, to understand why we did not.
The defendants produced eight or ten of them who said that the minute the shooting began, they rushed up, dropped their work and came up, one with a shovel on his shoulder and the others apparently without tools, to observe the automobile and its occupants. And apparently while these laborers were running an equal distance to that substantially traveled by the automobile in its course up that hill they got there at the same time and described from one to two to three occupants of this closed-in automobile, and every one of them said that of those occupants of the automobile whom they could see, the defendants were not those occupants or any of them.
Well, gentlemen, of the jury, they later produced Mr. Cellucci and Mr. Cellucci was the young sailor who came up in uniform from Hampton Roads Station. Do you remember him? And he gave the first flat contradiction to the eight or ten witnesses previously produced by the defense, because he said of all that crowd of workmen he and he alone was the only one who got up the crossing while the automobile was passing, and he said that to travel a distance of 60 feet it took the automobile three of four minutes.
How much of his testimony is to be believed is doubtful in my mind, but I ask you to believe that portion of it where he says that nobody else save himself slipped by the boss, whose name was Ricci, a little short man with the mustache, somewhat given to profanity, who testified yesterday, and you remember do you not, that Mr. Ricci, says that nobody got by or that he saw nobody when he turned around at the crossing, that the men did not get up to the crossing until the automobile had gotten way by.
If my brother wants to know why the Commonwealth did not produce this witness, that is the answer, because the Commonwealth believes that what Cellucci says in that regard tend what Ricci, the foreman says in that regard is true, that they did not come up because of their being stopped by the foreman in until the automobile had passed over the crossing tip the street, and maybe ought of sight.
And they produced one Frank Burke from Brockton, one of their early witnesses, the second witness who testified for the defense, and he tripped himself up and contradicted himself so many times in the course of his testimony that it seems to me it is idle for me to go over it step by step. I can recall off hand several things from memory and I know and have confidence you can, but let me point them out. This man who was so sure it was not a Buick car because he was familiar with Buick cars, who told he had ridden over the very day he was testifying in a Buick car, that he stood at the front end of the car and that he knew it was a Buick car.
The car that went over that crossing on April 15th was not like the one he came over in because it developed that he came over in my good friend Callahan’s Hudson super six Coupe, and this man who was telling you he knew a Buick because he had ridden in one that morning, and stood opposite the front end, the radiator end, insisted that he came over in a Buick that morning, and he finally had to take that back, that he came over in Mr. Callahan's Hudson.
And he was equally positive that between the time that he arrived at the station, leaving Brockton at 2.30, and getting down about quarter or 10 minutes of three at South Braintree, that he was away from the scene of the shooting making arrangements to have his apparatus taken to some school but 10 or 15 minutes or 20 minutes, some such matter as that. And the next morning appeared his friend, partner and companion, one Pecheur, some such name as that, and he said they came down at 1.30 on the train and that he waited there so long he got impatient and that he waited at least an hour and a half and maybe two hours for this man Burke, the man who could make no mistake in identification, to come back.
The very next witness who called by the defense completely contradicted him in a matters of recollection. But that is not all, gentlemen, you remember the matter of recollection that Burke said that he was away when he learned of the arrest of these defendants. And again the next witness, Pecheur, tripped him on that, because he said they were up in Harmony Hall, the Knights of Pythias hall up to Brockton, in Brockton, the next morning when they learned of the arrest.
That is not all. I am somewhat doubtful if it is wise to attempt to read to you testimony. You have had a surfeit of it, but yet in commenting upon some of the star witnesses it may not be amiss to call your attention specifically to what manifestly is erroneous and incorrect. He described the man to the right of the driver on the front seat as being thick set, short, full face, stocky, wore a heavy jowl, jaw, very dark complected, needed a shave badly, and then said he was smooth shaven, that he dark cap and dark clothing and he could not tell his height.
Why, gentlemen, witness after witness later called by the defense described the man to the right of the driver as a light-complected man, many of them using either Mr. Dever but mostly Mr. Atwood to give an indication of the lightness of the complexion of the man, and here this paragon of accuracy, Burke, who had already fallen three times, again fell in giving his description of the man to the right of the driver that coincided with the description of no other witness in the case. This man Burke who talked with Mr. Woodbury of the defense six or seven times in January or February, and who had been to the office of Mr. Moore from seven to eight times and talked with him a dozen or fifteen times, all the way from a dozen and a half to two dozen interviews over what he saw in a minute, and then, gentlemen of the jury, he could not get it right.
And they produced as the car,-after the car had rounded the corner, they produced the witness Chase, Elmer Chase, who was working out in front of the cooperative store. Well, gentlemen, of the jury, he says he has no trouble with his eye. he says he received an injury some years ago but that he had gotten over it and that he was over it at the time of this murder.
Well, gentlemen, will you remember his right, eye, still disfigured, still showing absolute and permanent impairment, and then think of the audacity of a man standing before you with your 12 pairs of eyes upon him and tell you that there was nothing the matter with his eyes.
And that is the quality of the testimony of Elmer Chase, but there is more than that, gentlemen, and my brother wanted to know why we did not produce him. Gentlemen, there is some responsibility upon the Commonwealth. There is some responsibility upon a prosecutor who produces witnesses whose evidence tends to prove murder. He may think well, he should think long, and he should always have his intelligence and his conscience with him before he puts the stamp of approval of the Commonwealth of Massachusetts upon him as a credible witness before he takes the stand seeking to prove the guilt of men and if proven will result in their death.
I have accepted that responsibility and I would be ashamed of myself if I were willing to put the stamp of approval on that witness. That witness who put a uniform on a man who was investigating out of his own town, Chief Stewart of Bridgewater and who says he never had worn a uniform in Braintree or in the course of his investigations in this case.
And Chief Stewart says that Elmer Chase told him when he was shown the picture of the defendant Sacco, that the hair cut there shown resembled that of the defendant Sacco, and that is all he could tell you, wasn't it, gentlemen, because the was whisked by, who was on the further side of the car leaning over the back of the front seat and trying to shoot apparently, or look, rather, out of the open window in the back of the car; and they find fault with us because we did not produce Elmer Chase, ,and I tell you I am proud I did not produce Elmer Chase.
Just as I am proud of the fact, gentlemen, that I did not produce Wilson 0. Door, a man who could tell the exact description of the four occupants of an automobile going by him on the road at a pace of 50 miles an hour. Door out-did Frantonelli, Door out-did anybody at the crossing who was telling you about three of the occupants of the car. Door could tell you about four of them in a car that whisked by him with the curtains down. A marvel and a credit to the town of Stoughton.
Now, gentlemen of the jury, I can't take time longer to discuss witness by witness. I have seen the unfortunate predicament in which my brothers were with the tremendous wealth of material to argue, and I have got to argue by and far, not specifically. I would never get anywhere. I would not complete my argument, at least I would not complete it all within the bounds set by the Court or in a reasonable bounds.
The next portion of the defense is that of alibi; as to the defendant Vanzetti first and as to the defendant Sacco. I am going to do more than Vanzetti's own counsel, because I am going to discuss it, and I submit to you respectfully, they, almost entirely neglected to discuss it. Maybe I may exercise poor judgment if that is the way they feel about it, but this is murder, gentlemen. This is a serious matter and I am seeking to have you on your consciences bring in a verdict of guilty, but I want it not upon, snap judgment, nor upon snap argument. I want it upon careful consideration.
But before I discuss the specific testimony relating to alibi, I want to discuss the manner in which an alibi may be put together, and by that I mean no opprobrious term. Take Rosen, take Mrs. Brini-Mrs. Brini, a convenient witness for this defendant Vanzetti. You remember him, gentlemen, that it was stated by agreement of counsel that Mrs. Brini, in whose husband's home the defendant Vanzetti lived the first four years that he ever lived in Plymouth and whose daughter Lefavre, the little 16 year old girl said of Vanzetti that he was the most intimate friend and was like one of the family and there most every evening and once or twice in a day time-Mrs. Brini, it is agreed in another cause when another date was alleged, testified to the whereabouts of this same Vanzetti on that other date there involved, a stock, convenient and ready witness as well as friend of the defendant Vanzetti. Mr. Corl, Mrs. Corl, young Morey That is all.
And for Sacco, Bosco, Guadenadgi, John D. Williams, Dentamore, Affe, and finally rest yesterday. And how are those alibis put together? And don't misunderstand me, gentlemen, no suggestion of impropriety, nor do I use that word in any invidious sense. I don't mean it that way. How is it constructed ultimately? I can't better illustrate than to take the witness Guilobone, whom I omitted to name as one of the defendant Vanzetti's alibi witnesses.
Guidobone is typical of the manner-each and every witness save Affe, the traveling grocery man-his manner of fixing the date of it is typical of that of every other witness or the in this case. Guidobone says to you under his oath to you 12 men of common sense and intelligence, "I remember I had a cod fish put in my hand at 12:10 o'clock on April 15 because on the 19th day of April I was operated on for appendicitis." That is the testimony of Guidobone, gentlemen, and I am not seeking to be humorous, either.
The witness Corl says, and his wife and Morey-until he spilled and destroyed the whole of the Corl evidence by the last remarks he made on the stand-that during the whole of the week that ended April 17, Saturday, Corl was painting a boat, and because on the 17th it was his wife's birthday and that he put the boat into the water and towed a boat from South Duxbury over to Plymouth, he remembers what he was doing on the 15th.
Why, gentlemen, the 15th was Thursday. He was painting that boat, Monday, Tuesday, Wednesday, Thursday and Friday, and what he said happened could have happened as well on the 14th or the 13th or the 12th as on the 15th, and I submit to you respectfully there isn't the slightest connection logically or in cause between April the 15th because he painted the boat the whole of the week than remembering any other day in the week.
And those men from Boston who remembered that they saw Sacco at the Boni restaurant on the 15th day of April, except for Mr. Williams they all remembered it because as ever one of them said he did not go to the banquet, Bosco and Guadenadgi and another whose name escapes me. Dantamore, the one who testified within a day or two, was the only one who went to the banquet. They remembered it because down there that noon time they were discussing the question of the banquet that was to be given that night in honor of Mr. Williams of the Transcript, and at the very moment they were discussing it the banquet was going on and was nearly over. That is the accuracy of recollection of those alibi witnesses.
Why, gentlemen, I once knew of a preposterous story that was told by a man,-not a story, a statement of being caught out in a fog when he was leading his cow out from pasture not 500 feet distant from his barn. He said the fog set in so suddenly and terrifically and remained so long it was a week before he could find the barn. He became lost. And his listener refused to accept that story and doubted its veracity, and the teller of it indignantly replied, "If you don't believe me, you walk over there and I will show you the barn."
Gentlemen, if you do not believe that I had a cod fish placed in my hands at 12.13 on the fifteenth because of this appendicitis operation on the 19th, would it have added any verity to the story, any convincing quality that would have warranted merit if Quobodone had bared his side and shown you the sear. "Gentlemen, if you do not believe I had the cod fish on the 15th at 12.13 and was operated on the 19th, look at the sear, that proves it."
Would it have added to the convincing quality of the stories of any of these alibi witness gentlemen of the jury, if Dentamore produced the menu, if there were a printed one that was given to the guests at the Williams banquet on the 15th, and said, "If you don't believe that I met Sacco at quarter of three in the Giordani coffee house after the banquet was over, look and see, we had olives and we had chicken, and here is the menu to prove it."
What in logic, gentlemen, is the connection between any of these things that they say helps to mark the time? To descend from the serious almost to the ridiculous, Corl says he remembers it "as the 15th he saw him in part because he was painting the boat that week, and in part because his wife’s birthday fell on the 17th. If there are any married men on the jury, and there must be, I ask you if it is necessary for any married man to remember his wife's birthday. That is a prerogative every wife has, and days before it has come she is prone to say "John, do you remember what this Tuesday is going to be?" And then do you remember. I have been married 17 years, gentlemen of the jury, and I can't tell you my wife's birthday now, and I don't need to tell You. I have a yearly reminder of it in ample season.
There is the galaxy of alibi witnesses. Isn't it a fair statement?
I have not yet discussed John D. Williams. I have not yet discussed
young Morey, and those are the two that remain of the alibi witnesses.
Haven't I given it to you as it is, gentlemen?
If there was any actual connection between the indisputable events upon which they predicate their recollection! Do you suppose that there wasn't a banquet to Mr. Williams of the Transcript on the 15th? You know better. You know there was such a banquet. Do you suppose Guidobone did not go to the hospital and was operated on for appendicitis? It would be idle; the Commonwealth has never taken to a move to dispute it. Of course it is true. That is fixed. They start with something fixed. Do you suppose for a single moment Corl did not paint his boat that week? Of course he painted his boat that week. It is a probable fact, undisputable. He starts with that.
Lastly, do you suppose for a single moment John D. Williams did not insert an ad which he secured for La Notizia, if that was the paper, whatever the paper was, on some Thursday in April. When he was asked by Guadenagi and when he was asked by Felicani to fix the date when he had met the defendant Sacco--, and I don't dispute that he met the defendant Sacco on any day, a day in April, 1920,---and the date that he had to fix it upon was the 15th day of April, what would he do, what would you do if you had records like his? You would go and see what business you did that day. Then you would start with that. What is the connection between soliciting and obtaining an order from some shop by Mr. Williams, as he said he did, and publishing it on the succeeding three days, and meeting the defendant Sacco on that day? It is the appendicitis. It is the scar and the fish in your hand four days before. If you don't believe me about that fog, come and I will show you the barn. If you do not believe that I remember it was the day I went to the banquet and that was the day and no other day-and Sacco did not go to the banquet and there was no connection between him and those who did go, he was a stranger to them, to most of them, until that day-I will show you the menu. That is the argument, gentlemen, and where is the logic of it?
"If you don't believe that it was the15th", says Corl, "I will prove
to you that my wife's birthday falls on the 17th." Of course, the good
lady had a birthday on the 17th of April. Nobody disputes it, but
the lady herself and her recollection that it was on the 15th that her
husband was down there, than Vanzetti was there talking that afternoon,
somewhat because out of the case when Young Morey in his final examination
in response to questions that I asked him said as follows:
"Q. I am asking you if that was the first time that you were asked to bring your memory back to some transaction in April, 1920?" and his answer was "Yes", and you will remember I was talking about when he first,-a very short time before he testified, he came tip on the train that morning with Mrs. Corl. I said,
"Q. Did you remember it right off ? A. No, I didn't.
Did some somebody tell you what it was? A. Yes.
Q. Who told you ? A. Mrs. Corl and I talked it over." And I then said, "That is all," and the witness then went on,
"And decided that was the day.
Q. You decided that ",as the day? A. We weren't sure of
Q. You weren't Sure of it? A. She wasn't sure.
Q. She wasn't sure? A. Yes."
And she was the woman who had just left the stand and had testified under her oath as to her means of recollection that she was sure. She not only was sure of it, but she was seeking for some purpose best known to herself to make young More fabricate the story that it was on the 17th two days before it was alleged that Vanzetti was over talking with him that his boat was towed by Corl.
And there remains nobody to discuss on alibi if I have sufficiently discussed that, save Rosen. They produced a lady to show that at Whitman on the night of April 15th a room was let in Littlefield's rooming house over his restaurant. That lady was utterly ignorant as to whom that room was let, for you may be assured that the defendant's counsel, who had seen the book and the record presumably would have asked. A room was let. They were in the eating and rooming business. There was nothing about that transaction.
And then Rosen testified that on the morning of April 15th he took the 6.37 train in the morning, and arrived in Plymouth shortly after 8, I think he said, 8.15, had breakfast and was at Seaside at 9.30. Then he described the selling of the cloth to the defendant Vanzetti. Well, that should be examined in exactly the same light that you would examine the cow and barn, the appendicitis and the fish, the wife's birthday and the boat and the banquet to John D. Williams, which indisputably fell upon that date.
There was no connection between any of those things nor any more connection than the Rosen testimony. An itinerant peddler he went all over the Commonwealth of Massachusetts selling goods, cross-country work, and he could not tell you with accuracy the number of times or the date that he had visited any other place, and he said in direct examination that April 15th was-I may have it reversed, either direct or cross-any he flatly said that April 15, 1920, was the last time he had been to Plymouth. Then in the next breath he said he had been down to Plymouth several times. He could not give you the date of any other time he was there, and what was there extraordinary about that? A visit to Plymouth in his usual course. He made three or four of them a year. He had been down two months before, he said, and he said he sold cloth to the same woman to whose house he went with Vanzetti on the 15th, two months before. That lady was Mrs. Brini, and she took the stand and she said she had never seen Joseph Rosen before the 15th of April.
You will remember, gentlemen, in order to get himself somewhat in line with the Vanzetti testimony as to the time they went to the Brini house, the whistles blowing, and after making one sale up at the Greek confectioner's place he had to use up pretty near the whole of the morning to walk two blocks, and you remember, gentlemen, when I was trying to make him go step by step, because I personally am acquainted a great with the geography of North Plymouth and of Plymouth and I knew how few steps he had to take in order to use it up. Gentlemen, he took his case, went round a corner and sat down.
Think of it, gentlemen! A man who came down at the expense that would be involved to earn his living in Plymouth selling cloth sitting down when he had just started to work and just got up from the only customer he had got that day going around the corner of the street and sitting down to use up time so as to make it come out right with blowing whistles at 12 o'clock. And you are expected to believe his testimony, and you are expected to believe his testimony on the cow and barn theory, because he produced a receipt of an over-due poll tax bill he says his wife paid in his absence and he saw it the next day, April 16, and in the next breath, gentlemen, he says he stayed at Whitman the night of the 15th.
And what are you to say with such testimony are that? Oh, it is true. Oh, it must be true, and how do they prove it? Why, gentlemen, they brought the cloth here with the hole in it. Of course, then you knew that was bought on the 15th. The minute you saw the hole in the blue piece of cloth you instantly knew that Mrs. Brini, Lefavre Brini, the daughter, and Joe Rosen were all right because there was the hole in the cloth.
That is the alibi defense in this case. I have not begun to do it justice, and the only way that justice could be done to it in its full absurdity and utter lack of convincing qualities would be to read every work of it and you would be here very likely until Labor Day.
The third defense, gentlemen, from which I can't seem to get away in my own mind, is the one that was born after the opening of this case for the defense. Gentlemen, I say that to you advisedly. I am fully aware of the importance of the words I am using, and I ask you to follow me while I give you the reasons why I said that this explanation of the consciousness of guilt shown by the actions of these defendants at Simon Johnson's house, in the street railway car to the officers and the police station is something the defendants themselves had never entrusted even to their own lawyers until the exigency of the case demanded it.
Why do I say that, gentlemen? Will you ever forget the cross examination
of Ruth Johnson who was the first of the two Johnsons to take the stand,
the little lady who lived near the bridge on West Main Street in West Bridgewater?
Or will you forget the cross-examination that was made of her husband,
Simon Johnson? It included many things, gentlemen.
The manifest purpose mainly of those two cross-examinations however, must have been evident to you. It was to break down the identification of Ruth and Simon Johnson of the defendant Sacco and of the defendant Vanzetti on the allegation of the Commonwealth, gentlemen, given through the testimony of those two witnesses that both of these defendants were out in front of the Simon Johnson house on the night of May 5th.
Question after question was hurled at these two witnesses. They were pressed and pressed and pressed again in an effort to break them down, not only as to these two defendants, but as to the friend of these two defendants, the missing Ricardo Orcciani. Every effort was made on the part of the lawyers for the defense to prove that the story that the two Johnsons were telling that these two defendants, either or both of them was outside of that house that night was an utter falsehood, and they failed to break them.
Do you believe that two learned gentlemen of the experience of my brothers McAnarney and Moore would have taken the time or have made the physical and mental effort to break down the identifications had they been entrusted with their own clients' story that they were going to go on the stand and admit they were down there that night? An utter waste of time of which these two gentlemen would not be guilty; and when the learned Mr. Callahan opened his case he gave you no inkling after both the Johnsons had testified that the defense proposed to admit that Sacco and Vanzetti were down at the Johnson house the night of May 5th.
Well, why, gentlemen, is all this great disturbance about their presence down there, twenty days after the murder was committed? Manifestly the murders at South Braintree had long since been committed and were over with. What is the connection and what is the importance of the West Bridgewater trip? It has a bearing and has been admitted affirmatively by the Court against the objection of the defendants solely for it affords to you convincing evidence, not convincing evidence but evidence for whatever weight you may give it, that the actions of those two defendants that night showed consciousness of the guilt of the commission of those two murders. I want to read to you what I have culled from a learned decision, not in this state and not literally, not word for word, but as I have adapted it to this case, on the question of the telling of the truth and the failure to tell it as evidence of consciousness of guilt, and it was said that, "There is no reason, if they are innocent, for withholding a single truth. There is every reason for uttering the truth if innocent. If they are guilty and if they have not confessed, the result in all cases either must be evasion, falsehood or silence. Each falsehood uttered by way of exculpation becomes an article of evidence of greater or less incriminating value."
And it is for you to say what importance you will attach to those circumstances.
Now, gentlemen, what is the explanation of the course of conduct followed by the defendants that night? They said, the defendants said -and you heard it for the first time when the defendants personally took the stand-"Yes", in effect they said, "We acted suspiciously and we acted suspiciously because we were conscious of our guilt in another regard. We were conscious that we were guilty of a federal offense, (and the federal offense is distributing, not having literature in their possession), that was of a Radical or Anarchistic or Socialistic nature. And we were also conscious of our guilt because of the fact that we had evaded the draft and that was why we did what we did. That is why we went away and that is why later on to the officers of the Commonwealth we denied that we had been there."
Well, now, let us examine that just a little closer. Does it strike
you quite as being the truth? The defendant Vanzetti says that
on April 25th, Sunday night, he took a train from Boston to New York, that
he went over there in the interests of some people in whom his organization
had an interest, with whom we have no concern, gentlemen of the jury.
That issue is not being tried here. Neither is Radicalism being tried
here. This is a charge of murder and it is nothing else, and there
isn't any other issue for you to decide, and the sole issue upon that charge
is: Are these the men? because there isn't any issue in fact that it was
Vanzetti says, "When I got over there, there was a man named Quintinilo who had been advised by an attorney named Nelles who had been engaged in this other thing that we must follow a certain course of conduct and that on May 1st"-mind you gentlemen, on May 1st-"we might expect raids and activity against those people who had in their homes Socialistic Literature."
And Vanzetti says he returned to Plymouth on April 29th, two days, gentlemen, before May 1st, and in explaining his course of conduct, or their joint course of conduct in running away from the Johnson house-because that is what they did, gentlemen, they ran away and I will explain the reason to you later- you later-he was in Plymouth on the afternoon of the 29th of April, the 30th of April and the 1st day of May until he departed for Boston in the afternoon or evening and he says in later explaining his monumental falsehoods to me on everything I asked him about the Johnson episode and in explaining it on the stand, "Why, we weren't going to get the literature that night. We were going to get the Boda automobile and Boda and I were going on to Plymouth and Orcciani and Sacco were going back home."
Should a lawyer waste. the time of a jury commenting on that? In the next, witness Sacco himself, we have the testimony that they were going to get literature that night and that he and the man Orcciani were going back to Brockton that night to warn their friends and have them take it out. He had previously said the day before when I was examining him that they were going to get the literature that night, but it was the next morning that he came back, after an absence from his examiner of some 10 or 12 hours, that he changed his story and said they were not going to get literature but they were going to warn friends in Brockton.
Can you tell me why four men, gentlemen, going in two different separate directions, should go down to West Bridgewater to get that ancient automobile? Was it necessary for the four of them to push it out? What were four men going after one poor old automobile for that was on its last legs and had to be brought over here on a truck? Four men going down to get an automobile, going down to see Pappi "if we had time."
Well, if that is all they were going to do, gentlemen, and if this mortal dread that made them utter falsehood after falsehood and deny up hill and down hill that they were there, was founded on apprehension of arrest on slackerdom, will you tell me why it was, gentlemen, that the four of them went down there and the defendant Sacco from whose house they went, who had this literature that on his wife's own story was of such character it was burned the day, the morning after his arrest and left these things-if she had to burn the rest of them you can imagine the difference in character between those they dared produce in Court and those she burned-will you tell me why, under every instinct of self preservation, Sacco and Vanzetti, who then had a week's notice, and the 1st of May had gone by when these raids were to be made-I am talking now about the 5th of May-Sacco and Vanzetti walked out of Sacco's house and left scores of books of such a nature that his wife burned them the next morning, and he says it was because he was afraid of the possession of that literature that he falsified.
Gentlemen, can you reconcile that with truth? Can you possibly conceive of any human being so gone to humanitarian values that, frightened out of his life when he was arrested that he was to be charged with having some Radical literature in his possession, he walked off and left his wife and baby with a load of books there that were of such a nature she destroyed them after his arrest, and never moved one of them.
Vanzetti, loafing around there from Monday afternoon to Wednesday night,
the man who came back from New York with the terrible report, frightened
to death, wanted to go notify people in Bridgewater, Brockton, Everett
and Salem to be sure to get this stuff out of their house and Vanzetti
was going to provide a hiding place, as he said, with some house owner
down in Plymouth. Vanzetti goes over to New York for that information.
He was so frightened, gentlemen, when he was down in Plymouth on the 29th
and 1st, 29th and 30th of April and 1st of May, he never made a move to
ask an individual to hide it.
Jump three days and he says as to May 5th, "The reason that I was not going to take literature that night if we could get the auto was because I had to go down first and ask someone if he would take it." April 29th, April 30th, May 1st, May 2nd, May 3rd, May 4th, May 5th. Seven days gone by, frightened out of his life for fear of deportation, and he never asked an individual.
Sacco, frightened so he could not tell the truth, and he never made a move from May 2nd, when he went home from that Sunday meeting and heard this awful report by Vanzetti, to protect his own home and take it out.
Well, gentlemen, maybe you see the logic of that. That is their explanation! That is the whole of their explanation. They ask you to swallow that. Well, gentlemen, what was it that could happen? They say "deportation." Well, this gentlemen, is an absurd defense. Mrs. Sacco took the stand yesterday or the day before yesterday, rather, and said "Why we were going to Italy on May 7th." He was so afraid of deportation he says he was going Saturday the 11th-he was so afraid of deportation back to his own country Italy, a trip that would cost him money for himself, his wife and child that he was going to pay money for-the country that he loved because it had fresh vegetables, the country that he loved because he could work easier and earn just as much pay, the country that harbored the rest of his family and when he had been wanting to go for months, he falsified to the authorities because he would be taken back there free of charge. That is their defense, the essence of it.
And the defendant Vanzetti was afraid, mortally afraid, so mortally afraid of deportation to his own home, the place from which he had emigrated seven or eight years before, that he, too, falsified. Sacco was afraid to go back! Why, he was boasting that he was going, back, and that is his defense; and in the next breath he tells, "I falsified because I was conscious of my guilt of having this literature and I did not want to be deported."
Sacco, who, on the exhibit that he himself has put in this case, was
going on a one way passport, a passport that would take him from Boston
to Italy and would not take him back, the foglio di via.
Is there any reason or any logic in that defense?
Let us pass on, gentlemen. When they took the stand they gave
the stamp of veracity and truth to both the Johnsons in every respect except
two. After cross examination upon cross 'examination, nothing that
the Johnsons said could be true was the import of the cross examination
in regard to their presence there. They went on and said "Yes", said
Vanzetti, "when I came up, the light of the automobile was facing north.
“He did not say "north," but he said "toward Brockton," which would be
north. When Sacco took the stand, the light of the motorcycle was facing South towards Elm Square.
Vanzetti said it was five, six, seven, eight minutes before Mrs. Johnson
came out. Sacco said what we all know, the light was facing originally
South. And Mrs. Johnson said it was 10 minutes from the time she
went and left her house and went to the Bartlett house, being -followed
by apparently by the two defendants up the railroad track as far as the
She went in to telephone for Warren Lawton of the police department of West Bridgewater in consequence of a prearranged plan when the authorities were looking for Mike Boda and for nobody else. She said that these defendants followed up on the street railway side of the track and waited outside until she came out 10 minutes later, and then accompanied her back and came over to the motor cycle, and the three of them were there when she went into the house 30 feet beyond.
They both stubbornly resist any suggestion that she is right that they
followed her up, and they have good cause for resisting that assertion,
because it shows you, gentlemen, that their story could not possibly be
true on consciousness of guilt for a slacker job, for the fact that they
deserted this country that has been good enough for them both to live in
a good many years, or possibly because of their possessing literature,
because of the fact they saw a woman go in a house and come back.
If I was a mind reader, as I decline, and Ruth Johnson came so close, the first thing, and they had no reason to feel she was-to suggest itself would be, Why is it they don't want to be seen going up with Ruth Johnson? Because they could not possibly explain that on the basis of literature or of their being slackers, a woman whom they did not know, or if they knew, she did not know them. So they both evaded that and say, "No, in that respect her statement is not true. We came up there after she had gone up."
THE COURT. We will have a recess for five minutes.
MR. KATZMANN. It has been called to my attention, gentlemen, that
in referring to some of the witnesses for the defense who testified as
to the occupants of the car in its flight, I neglected to call to your
attention one witness whose testimony ought to be adverted to, and that
is young O'Neil, the boy who said he just finished school. You remember,
gentlemen, he said he was standing up here at the end of the signal box
up there, and said the man who was leaning out, if I mistake not he was
one of the two or three witnesses who testified for the defendant that
that person was just aft of the front seat.
I am wrong. I am thinking of another witness. He was the one who said he got out of the rear part and just walked along the running board.
Gentlemen, the purpose of showing you that automobile yesterday was to show that could not be done, and when he testified that there was no obstruction and that he did not see him throw his leg up over the door or go around outside in order to do it, he was telling you that which was not true, and so his testimony that the man who did that was not one of these defendants, if you believe the rest to be true, you have a right to reject that, because it is for you to say whether you shall believe any of the evidence of any witness.
If is for you to say that you may accept part of it and reject the rest of it or you may reject the whole of it. You are just as much the judges of the fact as his Honor is the judge in relation to the law. You are as supreme in your realm of fact is he is in the realm of law. Nobody save yourselves are judges of facts. Nobody can tell you what to find as fact. It is for you to say, and it is for you to say what weight, what credibility you shall give to any of the witnesses, and that if you accept part you may reject the rest or may reject the whole.
That is all for you and you alone, and in making acceptance or rejection of the testimony of the whole or any part of any witness you would be guided by your good sense and your experience in life and all the mentality with which the good Lord has endowed you and given you ability to judge of the truthfulness of men. That is what you are expected to bring into the jury box, your common sense, your experience, and to exercise it in determining where the truth lies.
And in referring to another alibi witness, John D. Williams, I neglected to call specifically to your attention something on the evidence, that this man, who reinforced his memory by going to his file and getting out something that he did on April 15th and which had no relation to meeting Sacco, was sure that he went to the Doctor once a week, Dr. Gibbs, and that we went on April 15th and that he had been going once a week for several weeks before and continued to go for his asthmatic condition several weeks afterwards.
Then you remember they produced Doctor Gibbs next, and Doctor Gibbs let the cat out of the big. He said some time last April, this year, April, 1921, John D. Williams came up to see if he made a visit to him on April 15th; and that the last preceding visit was in March and that the next one, if I mistake not, was either late in April or early in May.
There is a test of the recollection of John D. Williams. That is recollection; and the only piece of evidence he gave that was founded on recollection he was wrong on according to Doctor Gibbs. And he is one of their principal alibi witnesses. What weight will you give to the testimony of such a witness as that?
Now, I was discussing the explanation, that feature of consciousness of guilt or lack of it as to this very crime on the part of the defendants in relation to the Johnson episode. Would you suppose, gentlemen of the jury, that men like Vanzetti, who had been home a week-he had not been home a week, been back from New York a week, three days of which he spent there in Plymouth where he was to procure the house owner who was going to secrete literature, making no effort to do so, despite this terrible news he brought home from New York, and Sacco, with whom he had been for three days substantially, and a little more, made no effort to get this literature out of his house?
Would you suppose these men who had not gotten the automobile, who bad not taken it out of the garage and who did not have a single scrap of Socialistic, Anarchistic or whatever type of literature they were afraid of, or any books of the sort in their physical possession, who were simply men who were on foot out there that night and had not accomplished their primary design of obtaining that automobile? What was there for them to be afraid of?
To use the vernacular, "Nobody had the goods on them then." There was no literature in any automobile in which they were seated. There was no literature in their pockets. They were in the same condition, as far as the literature was concerned, as they are now. Whatever might have been in their minds could not be discerned by the authorities nor apprehended. They had no literature.
But they had arsenals upon them. Vanzetti had a loaded 38 calibre revolver, this man who ran to Mexico because he did not want to shoot a fellow human being in warfare, a loaded 38 calibre revolver, any one of the cartridges instantly death dealing. This tender-hearted man who loved this country and who went down to Mexico because he did not believe in shooting a fellow human being, going down to get a decrepit old automobile, had a 38 calibre loaded gun on him.
And his friend and associate, Nicola Sacco, another lover of peace, another lover of his adopted country who abhorred bloodshed and abhorred it so that he went down to Mexico under the name of Musmacotelli to avoid bearing arms either for his adopted country, or, if he refused it, being an allied nation then when we were in distress, would have been forced to fight for his native land under the registration, had with him, this lover of peace, 32 death dealing automatic cartridges, 9 of them in the gun ready for action and 22 more of them in his pocket, carried where the ordinary citizen carries it there? No, gentlemen, carried where those who have occasion to use it quickly and want to ship it out and use it quickly would be prone to carry it, that death-dealing instrument.
But more than that, gentlemen, and ammunition enough to kill 37 men if each shot took effect, they had or Vanzetti had four shells-no weapon in which to fire them at the moment that we found, but you will remember, gentlemen, that sticking out the back of the bandit's car on April 15th was either a rifle or a shot-gun, and in Vanzetti's pocket were four 12-gauge shells loaded with buck shot that they were going out to shoot little birds with, with some friend that had visited them at some time before.
Maybe, gentlemen, you think that is the way men would be armed who were going on an innocent trip, innocent so far as death-dealing matters are concerned at night time after closing hours of the garage and when the men who ran it was in bed, going to make a social trip down to see Pappi, the friend of Vanzetti, and he did not know where he lived, save that it was in East Bridgewater, gentlemen.
And remember the Matfield crossing right next to the town line between West and East Bridgewater! Where did Pappi live, gentlemen? Why after their flight and after-the murders were committed did an automobile with five men in it and man to the right of the driver in the front seat go beyond the place where the automobile was found hidden two days afterwards in the deep woods near the poor farm near Cochesitt in West Bridgewater? Why did they go down and evidently make the triangular turn?
For one of two reasons. Either to take the loop to Pappi's house, or else to take Vanzetti back to Plymouth, and for some reason they changed their minds.
My brother adverted this morning to something I had personally forgotten, referring to that line, that automobile that was abandoned in the woods. You remember, gentlemen, there were two different tracks, he said, and you remember, gentlemen of the jury, we have been talking about two different automobiles. Were they conveyed away in some other automobile from a point a mile or two from the Coacci house or how was it or did they walk?
There was a reason for that trip to Matfield crossing, and it did not occur to me until I saw that map of East Bridgewater, for I had assumed they started on a return trip with Vanzetti to Plymouth but for some reason changed their minds. Perhaps too much country to go through, too great fear of immediate detection and apprehension as time went by and lengthened out after three o'clock on the day of those murders. May be it was for a different reason. Maybe it was because they were going down to Vanzetti's around Pappi, who lived in East Bridgewater.
But, gentlemen, that is not the whole story on consciousness of guilt, not by a great deal. You will remember that Officer Connolly, who has been described humorously described as a man with a smile, and that is the first time that I have ever heard counsel find fault with the police officer for wearing a smile when he is testifying. It is usually they find fault with him because he is vindictive and fails to wear anything but a scowl.
But Connolly's testimony is not to be forgotten or you gentlemen are driven irrevocably to the conclusion that if what Michael Connolly says is true, it was not fear of deportation, it was not fear of imprisonment because of being slackers that they tried to pull death dealing instruments on an officer of the law, their natural enemy, Had they, for the first time since April 15th face to face with an officer in uniform, the natural enemy of a murderer, tried to pull a 38 calibre revolver? Vanzetti says that is not true, or his counsel says that it is not true.
Well, do you remember what Vanzetti said about it? He said counsel argued Vanzetti made no move. How do you explain Vanzetti's own testimony in direct examination? He says Connolly said to him "Don't you move you dirty thing". Do you remember that expression, gentlemen? Why should Connolly say that if he was not making some move? And it is no step, gentlemen, then to accept the testimony out of the lips of Vanzetti and forwarded by Connolly that he said, "If you move you will be sorry", and that the move that Vanzetti was making was the move that Connolly described, a move toward the hip pocket where the 38 revolver was.
And then either Connolly or Merle Spear, who came down to Campello and assisted in the arrest and sat in the front seat in going back said that twice on the way up the defendant Sacco made a move to the front of his overcoat, and that is where he had the automatic concealed, and he was warned twice not to do that, and he denied that he was armed, this man who was so forgetful of what he was carrying on him that he would have you believe, gentlemen, that he took the revolver, think of it, gentlemen, going out in the woods to fire off the 32 cartridges to get rid of them because they were going next day, and tucked it in the waist band of his trousers and sat down to his supper and never knew it was in there and did not know there was 22 cartridges in his pocket, wholly unconscious of that, woke up the fact and twice, I submit twice in the ride to Brockton police station, tried to draw that death-dealing weapon.
What was Vanzetti going to do with the gun if he had drawn it? What was the defendant Sacco going to do with the automatic if he had drawn it? Can you conceive of but one purpose, gentlemen? They were going to draw their respective weapons to kill those police officers and make their escape. Consciousness of guilt! If you accept my explanation, to commit murder on police officers to escape being deported to their native country.
Gentlemen, where is your common sense? No wonder the attack was made upon Officer Connolly in an effort to break his testimony, his testimony that is confirmed almost one hundred percent by the admission of the defendant Vanzetti himself. He says that Connolly said to him, "Don't move, you dirty thing". And Connolly said, "I said to him, if you move you will be sorry for it." What move would he try to make save a move that would result in the death of the officer if successful and his escape from the hands of the law?
Consciousness of guilt! gentlemen Well, if you were arrested for expectorating
on the sidewalk in violation of some city ordinance and when arrested you
had a gun in your pocket, would you say if you made an effort to draw that
gun upon the officer that you consciously guilty of the minor offence of
violating a health ordinance by spitting upon the sidewalk, or would you
say, if you were going to go that far, if you were willing to go that far,
if like Sacco you tried to pull that gun twice upon Spear or Connolly or
upon whomever it was sought to make away with him, that you were conscious
of guilt of a crime commensurate with the kind of action that you were
about to take? Can you draw any logical conclusion save that?
Well, the argument may be carried forward still more. They got to the station. They were visited by police officers, and the next day as part of my duty I asked them if they were willing to talk with me. They both expressed willingness to talk with me and did talk. I take exception to my brother's remark, however, that that volume from which I read until perhaps you were tired of hearing me read from it, contained the statements of these two defendants only. My brother assumed that unwittingly. That is not the fact.
But they talked, as they said, for an hour or so apiece, and in every instance we bore down upon matters wholly outside of or extraneous to literature. Sacco says I never asked a question about his beliefs, but it is but fair to him to say that Chief Stewart had asked him the night before, and had asked Vanzetti.
Falsehood upon falsehood, as fast as they could be uttered, in response to questions, given by me, and the answer now is, "We were afraid you would find out we were slackers". I am not a federal official, and I have nothing to do with deportation. That is a federal function, violation of the laws of the United States, and that is not within my province.
Again you may say, "Perhaps they did not know it. True.
But when I asked them questions, gentlemen, about where they purchased
their revolvers and when I got the defendant Sacco and asked him if he
knew who Berardelli was and he said "No, who is this Berardelli?", and
you will remember that he had said in direct examination that I never asked
him about any particulate crime in the interview I had with him!
"A. No, who is Berardelli?
Q. Well, don't you read the papers? A. Yes, every morning
I read the paper, Boston Post.
Q. Did you ever work in Braintree? A. No.
Q. Did you ever look for work in Braintree? A. No.
Q. Did you ever go riding in an automobile in Braintree? A. No.
Q. Do you know what happened in Braintree last month?" (I was talking in May, and that meant April, 1920.) "A. Yes.
Q. What was it? A. I read in the paper about bandits over there in front of Rice & Hutchins, robbing money."
And he said 30 or 35 people came over and made him assume a posture, first facing them, then side to them, then turn around for them, and finally Sacco says, "Mary Splaine made me get down and point as if I was shooting, and I did not know that they were asking me about my whereabouts on the day of those bandit murders.
Well, gentlemen, on top of these other fabrications perhaps you believe
that. Perhaps you believe that this man who brings volume after volume,
in, Nicola Sacco, to show his learning and his desire to improve himself
mentally perhaps you believe that he is such a dullard that when the question
is put to him after step by step, if he knew about this,
"Q. Did you read it the next morning after it happened in the papers? A. Yes.
Q. Where were you the day before you read it in the papers?
A. I was working all days."
That he did not know it.
Will you tell me in the name of reason, gentlemen of this jury, what consciousness of guilt of having possession of Socialistic literature up in his little house in Stoughton bad to do with that falsehood? Or was he denying where he was the day before he read it in that, paper because he was conscious of his guilt from participation in that crime itself ? Can there be any other conclusion that 13 men of common sense can draw?
And you remember a similar question of the defendant Vanzetti, nor surrounded, however, I am free to say, in justice to that defendant, as were the questions that I asked at length and which I read to you about the South Braintree murder, if he knew where he was on the Thursday before the holiday that fell on the 19th of April, first calling his attention to when that holiday fell, the fact that it fell on Monday of a week, and he said, "No, he did not know."
There is no suggestion from either of these defendants that the examination was conducted unfairly or that it was conducted hurriedly or that, as far as I was concerned that there was any attempt to confuse or to frighten or to press down upon them. Even Sacco does not make that allegation as to the officers.
But it fell to the man Vanzetti, the man who showed the gruff voice because he could not control himself because again he was facing his natural enemy, a police officer, Connolly, when he was on the stand, and he showed that same quality of gruff voice that he shows under emotion and excitement that Austin Reed told you about, the crossing tender at Matfield, when he wanted to know why in "H" they were holding him up, when Connolly got to that part of his testimony when he said, "When I came in the car, Vanzetti made a move to his pocket".
Will you ever forget the uncontrollable outburst of the defendant Vanzetti, keen enough to realize that condemned any consciousness of guilt theory of a minor offense, of which the authorities had no proof whatever. "You are a liar" burst from his lips when Connolly told about that move.
And then you tell me, gentlemen of this jury, that the defendant Vanzetti was conscious of his guilt of any misdemeanor when he was trying to pull that gun on an officer of the law, and that that was why he falsified upon falsification? Falsehood after falsehood. Admittedly so now in an effort to explain away the 12 hard-headed men the real conclusion that your common sense would make you draw from such falsification.
That is not all, gentlemen, upon consciousness of guilt. There is something more telling than that, gentlemen, more convincing than anything I have yet said to you. You have seen enough of George Kelley, you have seen enough of George Kelley to feel, I should judge, that you know him. Been on the stand at least three times, if not more. He first appeared as a witness for the Commonwealth, and he appeared twice, I think, thereafter as a witness for the defense. I mean called by the defense. Will you remember what he finally said on the final I don't mean there was any difficulty in eliciting it from him, he was frank about it-that he knew Sacco very well, that they were real friends, that Sacco lived next house to him, that he had eaten many times at his house and that similarly the defendant Sacco had been in his, George Kelley's house. They were intimate friends over a period of two or three years. Apparently they were about of the same age, and they come from rather a small settlement in Stoughton (South) where the 3-K factory is; men of the same age, living near together, it is but natural and proper that they should be friends.
This man, Kelley, who father had employed Sacco, who had entrusted him with the keys to his factory to keep the fires up during the first winter that he was there"' And my brother would have you believe from that that everybody who is entrusted with the keys of a factory, a night watchman, is a man of superlative integrity and could do no wrong.
Why, he was the one man in the factory that if anything was missed it could not have been taken by anybody but Sacco in there as a night watchman. No particular difficulty in detecting that. No particular trust or confidence in him.
But they were in intimate terms of friendship, and this man George Kelley was the one who had arranged for Sacco to go to Boston some time after the defendant Sacco showed him a letter, and don't lose sight Of the juggling that Sacco tried to do in that letter, and I will call your attention to it very soon. He talked with him on the Friday before the Thursday of April 15th, George Kelley said, and about again about Tuesday when he spoke to him about his work, being out. All Kelley knows about Sacco's whereabouts that day is that he did not work all that day.
And when he came back he told him that the consulate was so crowded that he had to stay there or that he could not get his passport the inference being that he stayed there from the time he went in until too late to get the noon train and that is why he did not come back to work-and George Kelley uttered a significant remark in his original examination, either in direct or cross, "I accepted that as being the excuse."
If you find, gentlemen, as I suggest common sense and logic must force
you to find that this is a suspicious alibi that Sacco has built up around
himself about being into Boni's restaurant and meeting people, talking
with them, who do not remember the date and truly because of the time of
the banquet, or remembering it logically who are friends and associates
of his, some of them associated with his very defense here now, and Williams
associated in a business way with those friends, if you do not believe
that, gentlemen of the jury, don't you see that when he falsified again-and
he admits that he lied to his friend George Kelley-that he was falsifying
again from consciousness of guilt of the crime that had happened but the
day before. It must have been something substantial it strikes me,
that would make him falsify to the man who had been as good to him as George
But that is not all, gentlemen. He has falsified to you before your very faces. When Exhibit 43 his own cap that Lieut. Guerin says he got out of his own house was produced and shown to him before Lieut. Guerin testified he would not admit, gentlemen, that his own cap was his. What is there about that cap, which admittedly was not picked up on the scene of the murder, that would drive him from truth? Do you believe Guerin?
Do you think a man who has risen high enough in the police department
in the city of Brockton, a great police department, do you think a lieutenant
of that department would on his oath commit the perjurious utterance of
saying that was Sacco's cap and that he took it out of his house and that
it is in the same condition now as then if that were a fabrication?
And Sacco denied it. Why, gentlemen of the jury? It is too obvious to need argument. The reason he denied it was because this cap that was picked up by-
MR. MOORE. If your Honor please, I will ask either the retraction of the statement that the defendant denied that that was his hat or a reading of the record. My recollection of the record is that the defendant stated in the first instance, that it was; in the second instance on pressing that he wasn't sure because he thought his cap was a little lighter. Now, that is my recollection of the testimony. At no time did he say positively that it was not his hat. Neither would he say positively that it was or positively that it was not.
THE COURT: That is my recollection of the testimony.
THE COURT: But it is for you gentlemen to determine what the evidence was.
MR. KATZMANN: Gentlemen, I trust-I am grateful to Mr. Moore for interrupting – I trust that in so important a case as a charge of murder against two human beings, that I would not permit myself to stray a thousandth part from the testimony as I recall it. I am not attempting to repeat to you what has taken six weeks to utter before you word for word. I am trying to sum up fairly a just summary of what they have said, and call your attention and that of counsel for the defendant, who did me the kindness of interrupting me, that I finally left the defendant Sacco he said, "No, that cap is too dirty. I have got 50 cents to buy a new cap whenever I need one.
And I ask you, gentlemen, if it is not a fair inference from that statement,
if I am now stating the evidence to you accurately, to say that Sacco denied
that was his cap. Those were the words -that I had in mind.
I remembered the train of examination that my brother had spoken of, although
doubtless my memory is not as good as his, and I remember at first he said
he thought it was and secondly he began to express a doubt; and will you
ever forget, gentlemen, the amount of time that he took on the stand examining
that cap, and as I recall it, his final utterance was, "No, that cap looks
too dirty. I always had 50 cents to buy a new cap". Is that
not the evidence, gentlemen, and if that is the evidence, isn't it a denial
of the ownership of that cap?
Why, gentlemen, deny the ownership of that cap (indicating) ? This (indicating) is the one that was picked up by Loring and handed to Fraher and delivered by Fraher into Court, if I have the history right.
Then came the episode of trying the cap on. Not his first trial of the cap, gentlemen, since it had been first produced in evidence, as you well might have believed if there had not been cross-examination, because it was tried on in your absence early one evening when we were out. You went out for recess. It was first handed to him, and properly so, by his counsel. He tried it on. Then he put it on his head, and it rested there, and then he pulled it down, and I submit to you gentlemen that that dark hat, which is the hat of the man who killed Alessandro Berardelli-because the man who killed Alessandro Berardelli went away bareheaded in that automobile-fits the head of the defendant Sacco exactly the same as does the hat that on the testimony of Guerin you would be warranted and should find is his hat.
Don't take my word for that, gentlemen. It is too serious a matter, because it is absolutely condemnatory of this defendant. No, not absolutely, but it clinches on the top of all the other circumstances. Some one of you who wears a 7 1/8, if that is the size of those caps, try them both on. There is the acid test for you, gentlemen. Don't take anybody's word. Don't take Sacco's or anybody else. Try the caps on yourself, and if they are not identically of the same size, then so find, so find, gentlemen.
And more than that, I ask you to try it on, not this way (indicating) which would give more arc. Try it on with this (indicating) on. You saw Sacco do it. When he pulled this cap down, a heavier cap, twice the weight of that (indicating) and not any such degree of stretch as there is in that cap, didn't it go down over his head? Wasn't the line exactly the same with this cap as with the other. At least, gentlemen, it is uncontrollably, if that is the fact, that then the cap fits the defendant Sacco, and that is what the Commonwealth desired to prove to you.
Now, gentlemen, I have taken perhaps easily half of my time, if not more, upon the evidence of the defense. I must not be neglectful, as unfortunately my brothers had to be, because they were restricted to the time when they had two cases to argue, neglectful of the Commonwealth's case. Undoubtedly, gentlemen, and please do not do what I have just done, immediately threw on the side with that comment I have to make upon the defense, the defendants' cases.
You know as a matter of common sense, that in. a little over two hours
I can't justly and fairly treat evidence that has taken six weeks, or three
weeks, the defendants' case, to go in. There must be scores of things,
doubtless, properly that appeal to you as being more convincing than those
I have argued to you. I am omitting them because I haven't the time
to take them up. Don't you do so. Consider every particle of
evidence in this case. Decide it upon all the evidence, and nothing
short of it.
We come to the matter of the Commonwealth's case. The first thing is the murder itself. There are some things I assume there isn't any real dispute about. I said of course these two gentlemen lost their lives is not disputed; that it occurred down in front of Rice & Hutchins is not disputed, and that some five men were in the car that went away, may be that is disputed, but I think you would have no trouble in finding that of course upon the evidence; and that two men, the same two men who had been leaning up against Rice & Hutchins fence, and probably a third man hiding behind the pile of bricks at the corner of the restaurant ' the southwest corner of the restaurant or where the restaurant now is, who came from behind that pile of bricks and came out into the street, helped pick tip one of the two boxes and boarded the automobile, were actively engaged in that murder.
The question is, and the only question, who did the shooting? There isn't any other issue for you. I have discussed what the defendants' witnesses had to say about that in the matter of identification. I will now discuss what the Commonwealth's witnesses had to say in the same matter of identification. The first witness nearest to the scene of the street produced by the Commonwealth apparently was Lewis Wade. I was grateful to my brother Moore for giving so much credence to Lewis Wade.
The Commonwealth, on the vital testimony it was expected he would give from utterances that he bad previously made to the officers of the law, finds nothing to believe in what Lewis Wade said. It is in the evidence here that Lewis Wade told the district attorney of this district in the Brockton police station on the 6th day of May that he was sure that the Berardelli, and you heard what defendant Sacco was the man who killed Berardelli, and you heard what he had to say in the lower court here that he was not sure, and then you heard what, and I heard for the first time, what he had to say about it here.
Unknown to the Commonwealth a month before in a barber shop on Pearl Street, South Braintree, gentlemen-and you have heard Arrogni testify for the defense--he saw a man that looked so much like the defendant Sacco that he was no longer sure of what he had told an official, who was seeking to do his duty by this country, that he was sure, I find little to believe in Lewis L. Wade, and I leave him in your hands.
Then there was the witness Pelzer, a young man as I recall it, 22 years of age, and my brother Moore cross-examined him and cross-examined him wonderfully well, and I desire to pay my tribute earnestly and sincerely to Mr. Moore for that cross examination. And he brought out with skill and force that in an interview that Pelzer had had, I think with Mr. Reid of the defense, at Pelzer's house, he had denied that he had seen Berardelli on the sidewalk as he looked through that window, that he could not see and recognize the man who was shooting him down, and that he knew nothing about the actual happening from actually seeing him.
That is the substance of the cross-examination, and Pelzer said that
was true, and Pelzer said that he had told what were admittedly falsehoods
to Mr. Reid of the defense because he did not want to come in and testify
in this trial. And there in his comment upon the testimony of Pelzer,
Mr. Moore stopped this morning. But that is not the full story, gentlemen
of the jury.
In redirect examination after Mr. Moore had cross-examined Pelzer you will remember that my exceedingly able assistant, Mr. Williams, asked in substance, not specifically-I am not attempting to give you the exact question-if he had not equally falsified to the officers of the Commonwealth and if he had not told the officers of the Commonwealth that all he knew about it was that he got the number from the front end, 49783, and Pelzer said Yes, and that he did that, presumably, if he did not actually express it, for the same reason, he did not want to come to court and testify in this case.
He falsified to the defense. He falsified to the Commonwealth and then it became necessary for us to show you, and we did show you, how it was and when it was we first learned that he knew anything of the actual shooting of Berardelli. His identification on the stand in direct examination of the defendant Sacco was positive. He was the nearest-if not the nearest, there could not have been anybody who could have been much nearer than he, and I think he was the nearest to the actual shooting of Berardelli.
We discovered, you discovered, you learned when he was on the stand that, when forced to come here to court, brought in here-and it takes nothing in the way of imagination for you to understand why to give the number of the car (of course that is all we supposed he knew when he was brought to testify under his oath), that immediately before testifying he came in and saw the defendant Sacco and as the result of it he stated to you what he did state, that he was sure, if that is the substance of it, that the defendant Sacco was the man who pulled,-who killed Alessandro Berardelli.
Well, strange thing upon strange thing. They brought in, briefly they brought in McCallum and they brought in Constantino, the latter to testify that Pelzer was hiding under the bench and that he sat down at the angle of the corner watching him, paying no attention to the shooting, but locating Pelzer while the shooting was going on.
Well, gentlemen, when I examined the testimony of Barbara Liscomb last night, I found that the defendants themselves produced a witness who necessarily absolutely confirmed Pelzer in the vital part of his story that he was at the window and looked out and saw what he saw. Why, they are the only two people in the case who testify that the man down at the body of Berardelli pointed his revolver at the Rice & Hutchins factory. Barbara Liscomb, whom they produced, so testified. Now, gentle men, could the man Pelzer have testified, when Barbara Liscomb shortly afterwards went to Maine, if he did not see what she says she saw, a man pointing a gun up at the building in which they were both, she one flight higher up than he, if he did not see Berardelli's body and did not see what he said about it?
How was it, gentlemen of the jury, that in describing the location of the body of Berardelli, the placed it down, I think eight feet west of that telegraph pole-and I think referred to a stump-in any event in the immediate neighborhood of where the other witnesses who saw the position of the body of Berardelli testified it lay after the shooting.
Confirmation through Barbara Liscomb of what he said, He was frank enough here, gentlemen, to own that he had twice falsified before to both sides, treating them equally and like, and he gave you his reason. I think he added that he had never been in court before. If not, somebody has and I confused him. It is of little consequence. He is big enough and manly enough now to tell you of his prior falsehoods and his reasons for them. If you accept them, gentlemen, give such weight to his testimony as you say should be given.
And in weighing the evidence of the identifying witnesses of the Commonwealth and the rest of them, don't forget this, gentlemen. It is necessarily a human trait that when one man, or, worse still, two men are charged with first degree murder, it is much more of a human quality, much more natural thing for its human beings to do to deny that they know anything that would take these men into a verdict of guilty than to say that they knew something that would condemn them. That is human nature, gentlemen.
And now let me speak of the quality generally of the identification by witnesses for either side. I should suppose that the most striking witness to you 12 men would be the witness Dolbeare. I say that because Harry E. Dolbeare-I say that because you and Harry Dolbeare have something very much in common. You are the 12-venire men who by choice of the both sides became the 12 jury men who were to try this case. Harry Dolbeare was drawn as a venire man and came to this court as he testified on the second day of June. He might well have been one of you, and you must have recognized from that fact a peculiar quality that you 12 men had in common with him. And perhaps you would not be blamed if you did so congratulate him; but when Dolbeare appeared on the stand and told you that, your interest in him must have been awakened, must it not, that is a fair statement, perhaps more than in any other one witness, because you had something in common with him.
Now, gentlemen, he testified sometime since this trial opened.
I am going to tell you the day afterwards, but assuming you had the interest
in him that is natural for me to assume in view of the importance of his
testimony, if you believe it, and the fact that he was almost a juryman
or might have been a juryman-that is an important fact, isn't it, gentlemen?-and
it isn't much over 20 days ago, a little bit, that he testified, does any
one of you gentlemen know what day in June Harry Dolbeare testified?
Can I ask you to submit yourselves to any better test in weighing the recollection of those alibi witnesses that have been produced by the defense? Who could go back 20 days and instantly remember? I venture to say there isn't one of you that when this remarkable-remarkable in the sense I have indicated-witness took the stand, try as hard as you will you can't tell who testified before him, who testified after or what day he testified, and he actually testified on June 14, 1921.
But on the matter of identification, I want you to submit yourselves
to another test with Harry Dolbeare. Undoubtedly you remember the
gist of his testimony. Is there any one of you that can put in words
in identifying description of Harry Dolbeare? You saw him.
You saw him for a very appreciable length of time, and I venture to say
unless you have a prior acquaintance with him, that there isn't one of
you that could give a satisfactory identification picture of Harry Dolbeare
But, gentlemen, is there one of you if Harry Dolbeare were to walk up here now in a crowd of a dozen men who could not say which one was Harry Dolbeare?
Now, that is exactly the position that the identification witnesses for the Commonwealth are in. It is difficult for them. When you go out in this jury room having seen me for the past six weeks, until you are tired of seeing me, go out into the room and attempt to Put a description of me in words. Would any of you fail to recognize me if You saw me again? No, and you are not to be blamed for that, but a fair test because I have been here with you seven weeks, as is Harry Dolbeare or any other witness whom you want to pick out.
Well, gentlemen, the witnesses to whom I refer, first, Pelzer, and I have discussed his testimony. There is Levangie at the crossing. There are two Young ladies, Miss Splaine and Miss Devlin. There is the witness Heron, the railroad Police officer. There is Goodridge. There is Mr. Tracey, to whom the defendants have not referred in long argument. There is Harry Dolbeare. There is Austin Reed. There is Austin Cole, and doubtless others that escape me for the moment, but those are enough to illustrate, because I can't take them up one by one.
They find fault, gentlemen, with Levangie, they say that Levangie is one in saying that Vanzetti was driving that car. I agree with them, gentlemen. I would not be trying to do justice to these defendants if I tended that personally so far as you are concerned about my personal belief on that, that Vanzetti drove that car over the crossing. I do not believe any such thing. You must be overwhelmed with the testimony that when the car started it was driven by a light-haired man that showed indication of being sickly.
We cannot mold the testimony of witnesses, gentlemen. We have
got to take them as they testify on their oaths, and we put Levangie on
because necessarily he must have been there. He saw something.
He described a light-haired man to some of the witnesses. They produced
Carter, the first witness they put on, to say that he said the light-haired
man--, the driver was a light haired man. That is true. I believe
my brothers will agree with me on that proposition, but he saw the face
of Vanzetti in that car and is his testimony to be rejected if it disagrees
with everybody else if you are satisfied he honestly meant to tell the
And can't you reconcile it with the possibility, no the likelihood or more than that, the probability that at that time Vanzetti was directly behind the driver in the quick glance this man Levangie had of the car over when they were going up over the crossing. If you recall the the sign board right near Levangie, or not far from his shanty, you have any difficulty in dealing with the testimony of Levangie?
Right or wrong, we have to take it as it is. And I agree if it depends on the accuracy of the statement that Vanzetti was driving then it isn't because I would have to reject personally the testimony' of witnesses for the defense as well as for the Commonwealth who testified to the contrary. I ask you to find as a matter of common sense he was, in the light of other witnesses, in the car, and if on the left side that he may well have been immediately behind the driver.
This Heron who refused to talk, who refused to talk, as I recall it, with the investigator for the defense. -But what of it? That is within Heron’s control. That is for him to say. The district attorney himself cannot force any witness to talk to him until he puts him on the stand, and it is the right of every citizen to refuse to talk to either party, and two men who have been called by the Commonwealth, Shelly Neal and Heron, have, if I remember correctly, exercised that prerogative and declined to talk with representatives of-the defendant, which is a matter within their own control and nobody else.
Do you remember how Heron was procured as a witness for the Commonwealth? He was down to the Quincy police court on the day Sacco was brought down there for arraignment on this charge of murder. If Heron wanted to keep out of this case he made an exceedingly incautious remark. "That is the man I saw in the station, the railroad station the day of the murder at South Braintree." That must have been on or about the 11th day of May.
Was he seeking notoriety? Was he seeking to force himself as a witness upon anybody, or wasn't it simply he would not have come if he did not have to become a witness? Two and two still make four, gentlemen. And you can see how the Commonwealth learned for the first time of the witness Heron. Can you tell me what interest this man would have, he, the man who clasped eyes on the defendant Sacco coming up the walk or walking into the court house recognized him as one of a pair that were seated in the South Braintree depot in the neighborhood of half-past 12 on the day of the murder when he says he was seated in Boni's restaurant with his friend Guadenagi or his friend Bosco and somebody else.
What are you going to do with that testimony? Why should Heron come in and commit cold-blooded perjury? Can he be mistaken in seeing that man any more than, gentlemen, you could be mistaken in recalling Dolbeare or the other witnesses who have taken the stand whose face you won't recall, and who I recall to your attention.
You have looked at the face of Sacco for six long weeks, and is there a man of his countrymen-and I speak of that only because of their bearing certain pigmentary characteristics, dark hair and dark skin-is there a man of his nationality who has testified on either side of this case who approached him in physiognomy? Hasn't he a face, gentlemen of the jury, that once seen you would never forget?
But more than that, gentlemen, remember this in connection with the identification of every witness for the Commonwealth who have said "That is the man," or, "I think that is the man," or "I am sure that is the man, or "He is the dead image of the man," and various phraseology that they used. Gentlemen, put yourselves in the place of those witnesses who were at or near the scene of the murder, of the crime. An outrage upon society had been perpetrated. Two human lives had been taken, and those bystanders who were not frighten to death themselves ran away, those bystanders who either had the courage to remain or could not get away, whatever be the fact, what would you expect them to do it they could do it?
Why, they would bend every effort they severally possessed to visualize and to remember the face of the occupants, or the faces of the occupants of that car, the instrument used by the murderers to get away. It was not a casual look. It was not the sort of look you would give to your almost associate Dolbeare. You had no particular reason save the one I have reiterated, but you would remember him.
But if you know that Jones who had just gone before him was mixed up in a murder that had occurred and you did not know who Jones was but a man went by, wouldn't you bend every effort to seek to imprint that man’s face and his vital characteristics and peculiarities upon your mind so that you would never forget it or forget them so then when the time came if called upon by public authorities you could remember?
That is what Mary Splaine did, and they say she told in the lower court, "I will not positively say he is the man," Yes, she did say it, but she also said, "I will not say he is not the man." She gave you her explanation of why she said it, that upon reflection-I think it was in substance the same as Frances Devlin,--that upon reflection she was positive, she was sure. They were both sure that this man whom they saw leaning out from the front of the car directly back of the front seat, pointing a revolver and sweeping along up Railroad Avenue, was the defendant Sacco.
Gentlemen, do you think that two young women, presumably endowed with Christian instincts, young ladies who could have no enmity against the defendant Sacco, who could have no reason for committing the most damnable of perjuries would bespeak evidence against a human being that would take his life away? Gentlemen, that passes the bounds of human credulity. You can't believe that. You cannot have looked on Mary Splaine, a smart business woman, you cannot have looked on the gentle Frances Devlin and have seen the truth shining like stars out of her young womanly eyes and believe for a moment that either or both of them would dare, before a court of justice or before God their Maker, condemn Sacco to his death with a willful lie. You cannot believe that, gentlemen, having seen those women.
You saw Tracey. You saw Goodridge. You saw Dolbeare. Tracy, at least in middle age, if -not beyond the middle mark. Goodridge a young man, and they produced witness after witness, Arrogni, Magazu, Magnerelli, to make his testimony incredible, not believable.
Why, gentlemen of the jury Arrogni, Arrogni-if I carry it correctly, and if not you gentlemen will remember-the barber, as I recall it, on Pearl Street said that he talked with Goodridge and Goodridge said that he could not identify any of the occupants of the car and that if he had been outside he could have seen them, but that he looked through the pool room window and did not see them.
Then they put Magazu on, the man with whom he was playing pool who left him to go in to sell a pair of shoes to a customer, and he testified, by inference, that when Goodridge came back and told him only within a minute or two of the crime, that the paymaster had been killed and his guard shot and the bodies were lying down there and the bandit car had gone by, by inference that he just came in front the street where he had seen a fight, had seen whatever it was.
And then gentlemen, they put Manerelli on for the purpose-of putting on Arrogni was to show that when Goodridge said to you that he stepped out to the sidewalk, that that was false. Well and good. That is what Arrogni said ",as false. Goodridge told him he looked through the window. If you can not fairly construe the Magazu testimony as being that when he, Magazu, in the shoe shop learned from Goodridge as to what had occurred Goodridge had come in from the sidewalk, they follow it up by putting Magnerelli on, his former employer, filled with spite, gentlemen,-like that little Allen woman was filled with personal enmity and spite for Lolo Andrews-because Magnerelli says, heard all these things up to the time he ran away from my employ"-- They put Magnerelli on the owner and proprietor of these victrola stores, to show that Goodridge had told him that he had run in from the sidewalk.
What are you going to do with such contradictions as that? And That is the defendants' own testimony. Goodridge, you will remember, had seen nobody until the September following the April of the crime. When he talked with these several gentlemen who testified for the defendant, he had not been to court, had not, as he said he did in September, seen the defendant Sacco when he was arraigned in this court.
Hid identification, gentlemen, was based upon what I have asked you to believe you could base a recognition of Harry Dolbeare on. You can't describe Harry Dolbeare, can you, by word of mouth accurately, but when you see him you will know him. Goodridge, when he saw the defendant Sacco, came forward and said that he was the man he saw on the right side of the car pointing the revolver at him.
Then, gentlemen, there is Tracy, who owned the drug-store building.
He did care much about people leaning up against it and he went down twice
within a few minutes on a couple of errands just before noon time, went
over to the jail, turned over to his own initiative, went around the jail
without being led by any one-I think he said he went up with Officer Scott,
as I recall it. It is of no consequence. It was with some officer,
but I think he said Scott--and saw and recognized the defendant Sacco.
Austin Reed, who saw them just before the turning point in the flight of the car, He read of the bandit hold-up two days after it occurred and he said that at the time of the arrest some three weeks later he had not seen any newspaper but went to Brockton other business and learned from a man named Chandler riding up on the cars of the arrest and having associated the two apparently in his own mind, went around to the station to see if either or any of the three men then under arrest was the man whose face he visualized and remembered, Vanzetti.
A clean-cut young fellow. Why in the name of common sense would he attempt to swear away the life of Vanzetti? What interest could Austin Reed have in saying it?
And then there is Lola Andrews. I have been in this office, gentlemen,
for now more than 11 years. I cannot recall in that too long service
for the Commonwealth that ever before I have laid eye or given ear to so
convincing a witness as Lola Andrews.
Well, gentlemen, my brother McAnarney and I are not in agreement with the statement he made this morning. I was not up here. I was not over to the bench, but I understand he called that picture, the seated posture, Exhibit "T" to your attention, and said that Lola Andrews said that was not the picture of the man whom she had seen under the car, and that he then called your attention to Exhibit "T" and that he said she said that might be or was.
Now, gentlemen, that is not my recollection of any testimony that Lola Andrews gave, and I am going to tell you what she did say. Manifestly and indisputable these are both pictures of Sacco, a manifest inconsistency of she said any such thing. I say to you, gentlemen, that the substance of her testimony was that Exhibit 4 for identification, the picture of Sacco, she said, I think to Mr. Moore, "That is not the picture which I pointed out to you, Mr. Moore"; and that in referring to this side view, "I said to you, Mr. Moore"-I think it was Mr. Moore who was cross-examining-"I told you the man I saw at South Braintree resembled that picture."
In other words, she said the seated posture of Sacco was not the one she pointed out to Mr. Moore, and subsequently and immediately before her fainting away on the stand ' "That is the picture," she said, "that I told you that is the man I saw. The man I saw at South Braintree resembled that man."
That is quite a different interpretation, gentlemen. from that given by counsel, both of us imbued with the desire you should have the truth. Search your memories, gentlemen, and see if you do -not recall Mrs. Andrews time and time again, as I recall it, said to Mr. Moore, "I do not see any picture in those folders that you showed me," and finally she pointed to the one of Sacco standing up-I think side view with the derby in his hand-and said, "That is the picture I said that resembled the man at South Braintree," always claiming she had not seen the same pictures in the folder that were exhibited to her on the stand.
Well, gentlemen, a most vigorous assault was made on the testimony of Mrs. Andrews. It was made from three directions, through Messrs. LaBrecque, Officer Fay, Harry Kurlansky, the tailor, and Mrs. Julia Campbell.
You will recall that Officer Fay, who is now a member of the Quincy
Police Department, testified -that on the night he went up into the Alhambra
building and found Mrs. Andrews complaining of an assault that had been
committed upon her, lying on a couch in the presence of ladies and
children, that in seeking to identify the assailant of that night--a
night which very shortly followed her visit in the company of, the police
officers to the jail-that he asked her if in her opinion the man who assaulted
her was in any way mixed up with the man whom she had seen at South Braintree,
and that she replied, "I did not see the faces of any men at South Braintree,"
and if my recollection is accurate, and I am sure that it is, that officer
Fay said he had communicated that testimony to the counsel for the defendants
subsequently to Lola Andrews' testifying on this stand.
And I know that Harry Kurlansky, the tailor, said, in repeating a story that he quoted Lola Andrews as saying to the same effect, I could not describe the faces of the men whom she had seen, and he the Quincy Daily Ledger that Saturday night about the testimony given here and that as a result on Monday morning he went up to Mr. MeAnarney's house.
Well, gentlemen, the answer to those two pieces of testimony is to be found in the question that Mr. McAnarney directed in cross-examination of Lola Andrews before she ever left the stand and before Officer Fay says he first told my learned friend and before Kurlansky says he told my learned friend. Do you remember Mr. McAnarney asking Lola Andrews, "Do you know Officer Fay?" and "Do you know Harry Kurlansky, the tailor?"
What are you going to do with that, gentlemen? Those two men coming on and telling you the first time they told Mr. McAnarney after she testified, and he asking her in cross-examination if she knew Fay, and he added if she knew Officer Corbett and if she knew Harry Kurlansky. Do you need any further answer, gentlemen?
Could you understand the attitude of Aunt Julia, the elderly lady, 69 years of age, with cataracts on her eyes? We did not produce her. Could you see any reason why we should produce her, gentlemen? This elderly lady who came up all the way from Maine, gentlemen, testified that the man was crouched down under the automobile and that she could tell it was not Sacco by the back of his head.
Well, I said to you before that the Commonwealth hesitates long before
it puts the stamp of approval of asking condemnation of a man on trial
for his life upon any witness, and I would not put my stamp of approval
upon that kind of witness.
And then you heard Mrs. Gaines yesterday. It was on the basis that the defendants' claim must be that Mrs. Andrews had recently fabricated this story about inquiry of the man under the car how to get into Rice & Hutchins and not inquiring inside of Slater & Morrill's that we produced Mrs. Gaines who testified that within a week and before the Saturday of the week in which the murders occurred, down at Mrs. Lancaster’s house while she and her husband and Mrs. Andrews and Mrs. Campbell were there, Mrs. Andrews said, in referring to the murder, she had spoken to the man, touched him on the shoulder and asked the way into the Rice & Hutchins factory. That story, gentlemen, was not born after Mrs. Andrews became a witness, if you believe Mrs. Gaines.
THE COURT. (To the jury) Do you desire a recess, gentlemen?
MR. KATZMANN. I would not be human, Gentlemen, if I did not have sympathy for you sitting there. Doubtless I have your sympathy standing up here. But a prosecutor, gentlemen, who is seeking to convict two men charged with murder in the first degree, ought never to offer apologies for seeking necessary time, reasonable time to argue a case and I know you will bear with me.
I show you the picture of Mr. Scavitto. You remember our Friend
with the straw hat. That picture was shown to Mr. Cole, to Austin
Cole, the street railway conductor, and he was interrogated and he said
that man resembled the man. But I want to call your attention to
what I deem a further erroneous recollection on the part of my good friend
McAnarney as to what Mr. Cole actually said about that picture, and I am
not going to read much of this testimony, so don't be disturbed on that
Is this defendant's Exhibit 7? I ask you to find, gentlemen, as to that Scavitto picture, Mr. Cole, the street railway conductor, on whose car these two defendants got the night of their arrest and he says also on the prior occasion of either the night before the murders or the night of the murders, said, "as I did not get a side view of him, Vanzetti, I would not say he is the man, but he looks like the man."
Gentlemen, will you tell me why it was that Mr. McAnarney would find fault with that answer? Why, if he did not say that, he is insulting the intelligence of my good friend McAnarney, because Mr. McAnarney was the man-and he admits it with becoming modesty-in the course of the trial that he, the clear-eyes McAnarney, picked out Scavitto in the rear seat and rushed him out in the back and somebody conveniently lost good old Scavitto's straw hat and put on one that looked, well, more like somebody else's hat, and then conveniently restored his straw hat when he came back there, and that is Scavitto.
Well, I would not want friend Cole, the witness, to hurt McAnarney's feelings. Mr. McAnarney would have failed in this job, in this photographic effort of his if Cole did not state he looked like Vanzetti. He does look like Vanzetti. That is what McAnarney had his picture taken for.
MR. JEREMIAH McANARNEY. You made a statement a minute ago, that
is you challenged me. You have said it is too important a matter.
You have said my questions with regard to Harry, the tailor, were addressed
to this woman at a certain time, the questions in regard to Harry, the
tailor, were asked on Monday. Mrs. Andrews testified the last of
the week and the first of the week. Saturday she testified and Harry,
the tailor, saw that in the paper Saturday, Morning, Harry, the tailor,
came to me. Monday morning in this court, by the records of this court,
I examined Mrs. Andrews and asked her if she did not know Harry, the tailor,
so long as it is important -that as long as the truth is as I say it, I
would like to have you acknowledge it.
MR. KATZMANN. I always, Brother McAnarney, acknowledge the truth from any source.
MR. JEREMIAH McANARNEY. Well, I would like it from me.
MR. KATZMANN. Inclusing you when you read from the record, sir.
MR. JEREMIAH McANARNEY. Thank you.
MR. KATZMANN. And if that is the record, I accept it. Whatever may be the fact as to when she testified, I said it was in cross-examination, and it was in cross-examination, and if it was after he was visited by Fay and by Kurlansky, when that part of my argument you should disregard, that it was before either one of them had seen them. I knew it was in cross-examination, because I took it from my own notes, and that is all I knew. Lola Andrews' testimony, gentlemen, still stand.
And I call your , attention as I would have, of course, had I not been very kindly corrected by my brother, that Lola Andrews went over to the jail in February of this year and walked about the place, through the bakery and through the various rooms and wandered over of her own volition to an iron fence and looked down in a corridor and studied a man she saw down there for 15 minutes and she says that man is Sacco and that the defendant Sacco is the man directed her into Rice & Hutchins factory.
And gentlemen, in commenting on the testimony of Kurlansky and upon
Officer Fay, I desire to call to your attention to correct Mr. More, in
like kind, that in his examination it developed that Lola Andrews talked
with Mr. Moore on January 14th. This assault occurred in the middle
of February, and will you tell me in the name of common sense how Fay and
Kurlansky could be right in quoting Lola Andrews as saying she did not
see the faces of the man at South Braintree when my good friend Moore had
two interviews with her and showed her photographs, showed her folders
of photographs to a woman who told him she did not see anybody. Why,
gentlemen of the jury-
MR. MOORE. One interview.
MR. KATZMANN. Well, January 14th. I thought it was two I stand corrected. January 14th, a month before Fay says that Lola Andrews told him she saw no face, my learned and able friend Moore was showing her folders of photographs. Do you say she ever said it to Mr. Fay? And if she did, after she had been assaulted and did not want to get mixed up into the case after she had come up here, couldn't you understand it?
And that is equally true about LaBrecque who is a fine young fellow. She said it to him. He said he went there in his capacity as newspaper reporter, and I think you understand the situation. But the answer to it is that one month before that the learned Mr. Moore was showing her pictures. Do you think he was wasting him time showing pictures to a woman who said she did not see any face? Do I need to comment any more on her testimony?
Gentlemen, where was the car found? Where was the car found April 17th? In the wood in West Bridgewater near the poor farm not far from Elm Square, a mile or two, where these defendants were on the night of May 5th. Is the car that was found the car that was at South Braintree? There were no number plates on it. What do you say, gentlemen?
How about that hole? How did that hole come in the car, if you are warranted in finding that the hole in the right rear door was fired by a man who was close up to the front seat, because it was right up against the hinge of the door? Do you think it was a bullet hole, gentlemen? Was there much firing going on from the car at South Braintree and did some shot go amiss?
Were the curtains flapping loose on the car when found? Do you remember what Mr. Fuller said, that on the radiator on April 17th, in the Afternoon, there having been no rain the night before, there was moisture as indicative of its having been out at least one night in the dew? Do you remember the fact the plate glass in the back of the top was out when the car left South Braintree and that it was in the car when it was found. Do you remember the scores of describing witnesses who told you about a large dark Buick car? You can't have any trouble about that.
And don't you think, gentlemen, that on the night that those men, May 5th, were down at Elm Square garage and at the Johnson house, that on the 17th of April immediately preceding this car that unquestionably you must find was the car used at. South Braintree, was found not far distant from the scene of their night activities on the night of May 5th! Is there any association geographically there, gentlemen?
You don't find the car in Wocester. You don't find it in Pittsfield, You don't find it in South Boston, nor do you find it in Fall River. You find it in West Bridgewater, and the night these men were arrested, they were arrested within hailing distance of it. Can you put two and two together, gentlemen?
What killed Alessandro Berardelli? Four full automatic bullets, gentlemen, and every one of them fired by a cowardly assassin who shot from behind, and the bullet that killed him according to the learned Dr. Magrath, was the one that went in this shoulder, (indicating), through the middle of the trunk of his body, splitting the aorta, the great center vein of the body and lodging in the inside of the left hip bone, some what distorting and flattening the bullet.
Bullet no. 3, and a bullet that had a left hand twist, a bullet fired from some gun that gave a left hand twist; and Mr. Burns for the defense says that a Bayard Belgium automatic 763, which is the same as 32 calibre, could possibly have fired that, and also a Colt could have fired it, and he wasn't sure which, gentlemen.
Why, he gave the widths of the lands in the barrel of a 32 Bayard as 40 thousandths of an inch. And he gave the lands, the land width of the barrel of a Colt 32, as begin, from the bottom to the top, a variable distance of 2050 to .060, and .060 is the measurement that was given by Capt. Van Amberg; .060, varying to a lesser, almost .050 is what Mr. Burns gave himself. Then on that one fact alone, the width of a barrel lands, the projection, how could a Bayard have fired it. The width of a Bayard is 40 one-thousandths.
But the most important measurement, because it is susceptible to measurement, agreed to I think by the several experts, is the distance on the inside of the barrel between any tow lands, and on a Bayard it is 120 thousandths of an inch and on a Colt, and on this Colt of Sacco's it is 107 thousandths of an inch. It could have been fired by a Bayard, and that is the only one other than a Colt that is suggested by the defense' and in giving the measurements which Mr. Burns gave honestly, he put 11 Bayard out of it.
Then gentlemen, this left handed twist bullet, No. 3, was fired by a Colt 32. Was it fired by this Colt 32? Some one of learned counsel for the defendant has said that it is coming to a pretty pass when the microscope is used to convict a man of murder. I say heaven speed the day when proof in any important case is dependent upon the magnifying glass and the scientist and is less dependent upon the untrained witness without the microscope. Those things can't be wrong in the hands of a skilled user of a microscope or a magnifying glass.
There are certain things I said to you about the cap that I don't ask you to take anybody's words about. Take the caps, put them on your own heads, those of you who wear that size and let your fellows see it, a fair request to make and a fair use of the evidence when it is in your possession.
I say to you on this vital matter of the No. 3 bullet, take the sulphur case that James E. Burns for the defense produced from the barrel of the Colt that belonged to Sacco. Take the No. 3 bullet. Take the three Winchester bullets that were fired b Capt. Van Amberg at Lowell and take the seven United States Bullets that were fired by Mr. Burns at Lowell, and lastly take the barrel itself which we will unhitch for you,, and determine the fact for yourself, for yourselves.
Taking one other thing and keeping it carefully in mind, Take the photograph, the series of photographs produced by Mr. Burns that he made of the six bullets that were in the two bodies of these two decedents, fired, as we say, fired from a Savage, from the same Savage, because of the double marking that you will see on the bullets themselves, indicate of slippage as the bullet took the leads of the barren, a personal peculiarity of the Savage that fired them that you will find on every one of the bullets, 1, 2, 4, 5, and X, not withstanding the fact that Mr. Burns could nor or would not see it on two of them.
Take the glass, gentlemen, and examine them for yourselves. If you choose take the word of nobody in that regard. Take the exhibits themselves. Can there be a fairer test than I ask you to submit yourselves to? Eliminate Mr. Fitzgerald from this case, and I will tell you why, I was pressing and had been pressing Mr. Burns, an exceedingly able man and undoubtedly an exceedingly estimabel gentleman of long training and experience, as to whether or not this widening of the nose, the end of the bullet channel or groove, was not something that was common, and then he was succeeded by Mr. Fitzgerald, and, gentlemen, I did not ask Mr. Fitzgerald I believe 15 minutes' worth of questions.
And when I asked him to look at two of the Lowell Winchesters, you know what I mean by that, those that were fired by the experts in their experiments at Lowell on a Saturday during the curse of the trial, which Mr. Fitzgerald marked on the bottom with my knife a square and another with a square and two little points on it.
I said, "Take no. 3, which is the fatal bullet in Berardelli's body, the bullet which killed him and the only bullet which killed him, which has letter "W" up near the beginning of the nose of the bullet indicative of its manufacture, Winchester, and take those two that I am showing you of the Winchesters that were fired by Van Amberg at Lowell, and tell me if you don't find the same widening on those bullets." And I pressed him and pressed him on that question, and finally Mr. Fitzgerald says, "I don't understand what you mean by widening," and I said "That is all."
Any man who can't understand such plain question as that;-"Please look
at bullet No. 3 with its widening and please look at those two Winchesters
fired at Lowell by Capt. Van Amberg with their widenings "which you
saw, gentlemen-which were exhibited to you for the purpose of showing that
to you right then and there-"and tell me if the widening isn't the same?"
"I don't understand what you mean by you question." I wasn't going to waste
any more time on him, gentlemen, and I would not
blame you for wasting any more time on him. I consider it would be a waste of time.
Now, gentlemen, my good friend McAnarney,-and he is a good friend through seven weeks of hard trial. I am just as fond of him as I was when I started, and heaven knows I was fond of him then-my good friend McAnarney says in his argument, "Why, what does thais circus man Van Amberg"-I don't know what he means by "Circus man Van Amberg, "But that is the way he chose to describe him-"What does this circus man Van Amberg say is the identification of bullet No. 3, as being fired from Sacco's Colt?"
Why, he says because of the back flow and the primer of the discharged shells. Absolutely not the fact. Capt. Van Amberg did say it was indicative of a common property, but that it was not of importance. He ascribed as the reason why bullet No. 3, was fired by Sacco's Colt to a wholly different cause, and the answer to it, if you will just examine the exhibits, is within the discernment of your own eyes, and you don't have to trust Van Amberg or anybody else. Use your own eyes and you will see it.
But before I disclose what he gave as the reason why bullet No. 3, was fired by the Colt that belonged to Sacco and not by any other Colt, I want to tell you the reason that Mr. Burns gave and the answer to it. Mr. Burns said, "I am of the opinion"-, and he showed you the photographs and told you to look at bullet No. 3--"I am of the opinion that bullet No. 3 was not fired by the Sacco Colt because if you will look at this groove in the bullet"-It was on one of the places, I think, the third or fourth plate you will see instead of the sides being parallel in the bullet groove, which is the part of the bullet that was marked by the land of the barrel, the projection of the barrel at the top or nose end, you will see it flares out a little bit," and he said, "The reason why I know that bullet No. 3 was not fired by Sacco's Colt is because the United States Bullets which I fired "he fired-"at Lowell, showed absolutely parallel side, with no spraying or widening of the nose end of the groove."
He is right, gentlemen, they do not show any widening of the groove on the bullet. You can examine them to your heart's content and you will see they are absolutely parallel, and there is lies the skill and the value of James E. Burns to his defense. He knew that bullet No. 3, the fatal bullet, was a Winchester. He used seven United States Bullets, and he gave as the reason the fact that the bullet no. 3, was of old manufacture by the Remington (Repeating) Arms, the Winchester (Repeating) Remington, and that he could not procure one just like it, and that the nearest to it was the United States bullet.
Well, gentlemen, the answer to that expert's basis of claim that bullet No. 3 was not fired by the Colt Sacco is to be found with your eyes, gentlemen, your eyes, not my eyes, not Van Amberg's eyes, not Burns denial not Fitzgerald's denial, but with your eyes, and in two of the three bullets of the Winchester make that were fired by Van Amberg at Lowell out of Sacco's Colt, out of the same gun that Burns fired the seven United States you will find, three of the Winchesters fired by Van Amberg at Lowell, on the base of two of those-and if you have a strong enough glass-what I saw about these two that are marked is equally true as to the one which is unmarked, and I will explain what I mean in a moment.
On the base of the two Winchesters, and you can so identify them, fired by Van Amberg at Lowell out of Sacco's gun, (first a little square mark and the other one has a little square with two pits put on by Mr. Fitzgerald.) Those Winchesters were fired by Sacco's gun, the Seven United States were fired by Sacco's gun. The same seven United States bullet grooves show no widening at the top. The Winchesters fired by the same gun, which Mr. Burns says is the identification mark on which, he eliminates the Sacco Colt, show the same widening, gentlemen, as does;, the bullet No. 3. Don't you forget that.
And it is equally true of the third bullet when on close examination, on very close examination, you will find a little piece of metal here which gives the effect of making the line parallel. If you examine it closely you will see 3, an unmarked one, is widened similarly to bullet No. 3, and that is what Mr. Burns says is his means of identification, and his failure to find it on the seven United States is the reason that he says bullet No. 3 was not fired by the Colt of Sacco.
What is the reason Capt. Van Amberg gives for saying that bullet No. 3 was fired by the Colt of Sacco. A short statement of his reason is this: Not flow back, gentlemen. That was a matter of minor detail, common in the primers of cartridges, not the reason that Capt. Van Amberg gave for saying that Sacco's Colt fired bullet No. 3, but the fact that while fouling from rust is a peculiarity of any gun that is not cleaned properly after it is fired and more or less common, the pitting on the inside of the barrel of the Sacco revolver, when you heard speak of "gear" marks, if I was to speak of them at 9 o'clock by the clock and look at 6 o'clock, that is so marked one inch in from the muzzle end at the right hand side of the land that you would there see at 6 o'clock identically the same to what Mr. Burns says was a ten-thousandth of an inch on that sulphur case, confirmatory absolutely, if you will only use your eyes to see them, of the scoring that would come from the pits caused. by ruts.
Now, what did Capt. Van Amberg say would be the effect of rust pits in a barrel? He said it would cause scoring along the edge of the groove in the bullet, Look, gentlemen, at bullet No. 3, Look, gentlemen. of the jury, at the three Winchesters fired at Lowell through the Sacco Colt, and see if you do not find pronounced scorings on the edge. It is just like you took a plane and went along the edge of the groove, and you will find pronounced scoring on one of the bullet grooves common to those four bullets, No. 3, the fatal bullet, and the three Winchesters.
More than that, I asked you to eliminate Mr. Fitzgerald. I will ask you to bring him back, not eliminate Mr. Fitzgerald for the moment. The reason is this: He said that he found a great deal of pitting at three of the lands as shown by the sulphur case from the inside of the Colt barrel more pronounced in the case of two than in the case of one.
I ask you to look again, gentlemen, at that sulphur cast and what we are talking about as pits show as a sort of pebble eruption on the cast so you would understand that, because if there is an actual pit on the barrel itself, when the sulphur went in it filled it, and when removed it had left a raised portion.
I say to you, gentlemen, that there is something still more to be discerned by your eyes as to which no expert has testified, and that is that there are four of the six rifling marks, which are called lands, on the inside of the Sacco Colt that show pitting, one more than the other three, that you will find scoring on the edge of the bullet grooves of the three Winchesters at Lowell and the fatal bullet No. 3, and you will find it more pronounced as to one of the lands, but measure up four, look it over gentlemen, and you can come to but one conclusion with respect to bullet No. 3.
May I have a recess of five minutes out of my time?
May it please your Honor, and gentlemen, I spoke about recognition of faces. Surely you had opportunity enough this afternoon to observe all my peculiar facial characteristics, which I am going to erase from your vision, gentlemen, as soon as the duty that I owe the Commonwealth if performed, and I hope that right soon. I am. going back now to pick up here and there sporadically a few witnesses to whom I feel, in justice to the Commonwealth, I should refer and whom I have hitherto omitted to mention.
John W. Faulkner of Cohasset, the man who says the defendant Vanzetti came upon the train that left Cohasset at 9.20 on April 15th, arrived at East Braintree at 9.52 alighting with a bag in his hand on the west side of the station. It appears not--as somebody representing the defense, and I have forgotten which is the particular gentlemen, argued that man, Faulkner, and been coming on that train for months. That is not the fact as I recall the testimony. He had been injured, and injured a thumb or some portion of the hand and had been receiving hospital treatment at the Watertown Arsenal and was on his way that morning. He had been there several times before.
He recited to you the reason. A man who was a stranger asking where the East Braintree station was, and the, gentlemen, in the face of that question from a man who was manifestly a stranger, the defendant, Vanzetti, so Faulkner says, asked another man who was a stranger and he in turn inquired of Faulkner where East Braintree was.
In the face of that, gentlemen, the defense produced the station agent at East Braintree to tell you that about a month or six weeks or something like that after the 15th of April,-and he did not say, gentlemen, that he saw that man or any other man alight on the 15th of April, but he saw a tall, lanky man with a black bag whom he thought was workman getting off on several occasions since then. That is the testimony, gentlemen; and I asked him if he thought Vanzetti was a tall, lanky man, and he said, "No." I refer to Mr. Brooks, Edwin Pierce Brooks as I recall it.
And then they produced this man Brooks to tell about a man getting off
there with a regularity, and they are trying to make you believe that a
man who has been getting off within four to six weeks after the 15th of
April with some regularity three or four or five times would have to ask
where the East Braintree station was. That man knew where it was.
He was getting off with regularity.
But more than that, Mr. Faulkner, interviewed as he testified by Mr. Moore for an hour and a half or two hours and never had a single question read to him from the record of Mr. Moore. It shows how accurate Faulkner was and he was the man who said that the man who was asking was no Pervious that the question attracted his attention.
He said, "I say the man in the dock is the man. I could not be mistaken in that. He asked me at Weymouth. and he leaned towards me. I was first interviewed by a police officer a day or two before I went to Plymouth," and he went down to Plymouth" some time about the middle of July 1920, and out of five prisoners there picked the defendant Vanzetti. They wanted that kind of test. They have gotten it.
And then they produced the photograph of a man who, presumably, the guides of the defense considered to be a double of Vanzetti, as near a picture of a man looking like him as they could get, and again I say it would be an insult to the intelligence of the defense if this picture did not look like the picture of the defendant Vanzetti, and asked John Faulkner if this was the man he saw get off the train at East Braintree, and he said, "I wouldn't say," again a credit to the intelligence of the defendant but on looking at the defendant in the dock, not looking at any picture of a man with a straw hat, not a man with a slouch hat, a man with a straw hat, a distant view, a full length view-if they wanted him to recognize his face they could easily and properly should have got a picture of his face and his face only-when he looks at the defendant Vanzetti in the dock he said, "I say that man in the dock is the man, and I could not be mistaken," and despite the fact, my brother Moore talked to him stenographically for an hour and a half or two hours he -never asked a question designed to contradict one thing John Faulkner said to him.
Now, passing hastily on to the question of the 38 revolver, I told you
in the beginning the theory of the Commonwealth as to how it came into
the possession of the defendant Vanzetti, The theory we say is supported
amply by evidence. To controvert that they bring two men from the
State of Maine who tell you they remember that gun substantially by the
fact that the muzzle end, the end that would be fouler anyway, from discharging,
the bright nickel is worn off and right over the firing chamber.
One man said he saw it worn off on one side, and it is worn off on both sides, and then they produce a man, Flazini. Are you satisfied with the quality of that testimony? And don't forget what Vanzetti said. He said he bought it four or five years before somewhere in Boston and paid $16 or $17 for a $5 gun.
And is there any significance, gentlemen, in the fact that Falzini,
the East Boston man last October, to whom Orcciani, the elusive Orcciani
who has not be produced, is alleged to have sold it after buying it from
a man in Norwood, Falzini says "that was a six-cylinder gun I had," and
this revolver is a five cylinder. Is there any significance to the
fact, gentlemen, that Vanzetti himself, when he was in the Brockton police
station said it was a six-cylinder revolver? What does that mean,
Who knows best, referring to that same revolver, whether there is a new hammer in it or not, the man who says he put a new hammer in some time after the 20th day of March, 1920 on the job ticker corresponding to the one downstairs-to be sure the man upstairs had it 32 when the ticket downstairs showed that it was a 38 or the man who came from,--Lincoln Wardsworth, who came from New Hampshire and Mr. Clark at IverJohnson said he made the entry and it was 38. When it was upstairs it was confused but it was the same ticket shop number, and Lincoln Wardsworth said it was 38. And Mr. Fitzmyer the gunsmith upstairs for 31 or 41 years, he said it was a new hammer put in that gun. Who knows more about it, the man who put the hammer in or James E. Burns; an expert user of fire arms, a gunsmith for 41 years, or an expert who never saw the gun until he came into the court room?
I want to refer to Barbara Liscomb, the lady who fainted away in opening the window upstairs and says she saw a man looking up pointing a gun, the same as Pelzer says. Her degree of distance and accuracy and memory in description may well be judged by what she said as to the day on which she saw Orcciani at the Braintree town hall within less than seven days of the murder. The murder was on April 15th. Seven days would be April 22nd, and Orcciani was not arrested until May 6th, and I thing that disposes of Barbara Liscomb.
The note books here, gentlemen, produced by Affe, and before I pass away from that 38 Harrington and Richardson, I want to call your attention to the lady who was described by my genial friends as that good looking lady from Quincy. She was good looking, Mrs. Florence, and was produced to contradict Mrs. Berardelli. Mrs. Berardelli, a woman who said she could not read or tell the calendars, a poor benighted widow, when after she has been made the widow the defendants are trying to make a perjurer out of her now. They produced Mrs. Florence to testify that poor Mrs. Berardelli said three or four days after the funeral, "If he only carried his gun or done what I told him or got it back from the shop perhaps he would not be in the condition he is in now;" that prior to his death she is quoted as saying that he did carry a gun but she had taken it in and was going to have it fixed, if he had only gotten it out perhaps he would not be in the condition he was then in, dead.
Well, gentlemen, there were many crowns placed upon the head of James Bestock of Brockton by both counsel for the defense in their argument. That was for the reason that Bostock, who went up the other side of the street just before the shooting and -not on the sidewalk-by the two men loitering against the fence and the one who had the two bullets fired at him, did what I am sure that he did, run behind the fence or the best thing he could run behind, to avoid getting hit, and did not see or know any more about it, which was so, being busy getting away, a level headed man and as being a level headed, upright gentlemen, James Bostock takes care of the evidence of Mrs. Florence, because he says on the Saturday before the murder be saw Berardelli show the gun, the man whom they say is a fine witness.
MR. MOORE. I beg your pardon, just one second. My recollection
of the evidence is Bostock did not identify this gun. He said he
saw simply a bright nickel gun. He made no effort to identify either as
to calibre or as to make.
THE COURT. Gentlemen, you remember what the evidence is. You will, of course, apply it according to your remembrance of the evidence.
MR. KATZMANN. I say to you, gentlemen, my recollection of the evidence of Bostock in that particular is that he said the first time he ever saw the gun was Mr. Berardelli permitted him or he had it from Berardelli in his hand, and that the gun we produced was similar and answered the description of the gun and that he saw a gun in the possession of Berardelli on the Saturday before his death. Contrast that with the testimony of Mrs. Florence.
Now, I want to advert to the testimony of Mrs. Novell, the nurse who walked down from the corner of PearI and Hancock Streets on the north or left hand side substantially at the same rate of speed as an automobile proceeding at a slow rate of speed near her. Admittedly she said and admittedly the fact and I think you gentlemen will find the driver was a light-haired, pallid complexion man whom she did not know. She thought the other man was a man named Mooney whom she did know, and looked carefully at him and when she was testifying for the defense, I asked her, "Didn't you tell Mr. Hellyer of the Pinkerton forces when he showed you a Picture of Sacco it resembled the man you saw there very much?" and she said, "No." Well, Mr. Hellyer produced his record and refreshing his recollection from it said she had, I leave it to you to judge as between them.
Now, as to the note book and the standard of writing of the itinerant grocery man Affe, who says on the 15th of April he received a payment of $15.50 and he wrote it in a book. The whole book is in evidence, gentlemen, look through it. He says he wrote in the book. Don't vet confused on one thing. Wherever you see in ink, "J. J. McKenney," where you see "J. J. McKenney," there, that is the original entry, from which Affe testified. Some place else you will see two pages inked, one marked "J. J, McKenney (1)," and one marked "J. J. McKenney (2)." Those are the standards the same as these (indicating) are standards, but written in the book, one a copy of this page, the other the copy of Sacco where it appears on another page,-copy of the name and address of Sacco.
I want to call your attention in the standards to the way he spelled pardo" (?) and the way it is spelled there (indicating), and in fact instead of writing the Italian word "il", he writes "al." I say to you gentlemen upon that fact and the fact that this is manifestly written in between the total and the amount that was paid, written in back hand and I defy you to go through those two standards and to go through the two standards in the book respectively marked "J. J. McKenney (1)," and "J. J. McKenney (2) and find a single letter written in back hand-I say that Affe never wrote it, and I think that the fact that he wrote pardo" instead of "Pagato" and this word "al" instead of "il" spelling it when the word was put to him, shows that Affe did not make the entry.
Look through it. Look at the rest of the writing. Look at the very few times he wrote any dates and if he didn't write it "10-3-20," meaning the 10th month, 3rd day, 20th year. Whether he did or did not write it, gentlemen, the very plain answer is that he could have written it in himself in his hand and I submit to you at any time he wanted to when it was necessary to aid him in deciding the date, and I call to your attention when you have the glass to the peculiarities of that letter “5” and “5” in the word "15". Look at the "3" you see in the book and say if a stroke on the 3 as he makes it would not make a “15”, and that is all on that, gentlemen: I ask you to consider these things.
Referring for just a moment briefly, and I am almost through, to Mrs. Lola Andrews again. You will recall, gentlemen, of the jury, that Mr. Moore examined Mrs. Andrews at length from a typewritten statement that had been taken stenographically from her. And, Gentlemen, if she ever said to Mr. Moore anything that was contradictory of what she said on the stand particularly, gentlemen, if she had said that outrageously foolish statement that Officer Fay Labrecque and Kurlansky gave to her in the middle of February that she did not see any face while in the middle of January My friend Moore was showing pictures, if she said any such thing, you may be assured that record would have been read, and there wasn't a word of it read.
They complained this morning we did not in view of the fact that Sacco says that he worked at Rice & Hutchins factory in the fall of 1918, that we did not being witnesses from the Rice & Hutchins factory who were crowding the windows at the time of the murder who would have known the defendant Sacco and Could have said, "It isn't a black haired man what I saw doing the shooting but it is Sacco because I know him."
Why, gentlemen, that is a profound suggestion in behalf of these defendants. The Rice & Hutchins factory is just as much open to the defense as it is to the Commonwealth, and if there were any witnesses in the Rich & Hutchins factory who knew the defendant Sacco when he worked there for seven or eight days in October, 1918, why didn't you produce them to show that he was not the man who did the shooting.
Furthermore than that, the defendant Sacco says when he worked at the Rice & Hutchins factory he worked way up near the track, which presumably is not the factory we have been discussing at all. It means the brick factory right near the scene of the accident.
Furthermore than that, gentlemen, it develops that this gentlemen, Sacco, falsified to the Commonwealth and he specifically told me that he never had worked in Braintree, and it was not until he took the stand in his own defense that we learned or ascertained that he had worked there. It wasn't until he told us that he worked not under the name of Nicola Sacco but under the name of Nicola Musmacotelli.
Well, will you tell me if, in addition to the other things that a district attorney is expected to possess he is supposed to possess the power of clairvoyance to read months in advance of the trial that the man had given a fictitious name and that he was then to go and look it up. Be reasonable, gentlemen, in your arguments. We did not know -that he ever worked at Rice & Hutchins. He denied it and when he told us on the stand that he worked there we found that he worked under a different name, Musmacotelli for seven or eight days in October, 1918. If that was such a wise thing to have happen, either for or against Sacco, why didn't you bring him?
Why didn't you bring Orcciani into this court room and why didn't you
permit Orcciani to testify, the man who could explain about this profound
reason for the consciousness of guilt if that reason existed in him?
He has been within the control of this defense. He had been outside
the Court room, as witnesses have testified, and he is not produced.
What is the reason?
The Commonwealth has a right to draw the inference that if produced he would give testimony that is not helpful to the defendants. And I make that comment and I ask you to draw that inference that Ricardo Orcciani was not produced because if produced his testimony would be against the interests of the defendants.
MR. MOORE. At this time the defendants desire to object to the
last line of argument with reference to calling this witness and take an
THE COURT. If you want, in exception before I rule?
MR. MOORE. No. Your Honor.
THE COURT. I think it would be well to let the Court rule before you claim an exception. It will hear you at the desk, Mr. Moore.
(Conference at bench between Court and counsel.)
MR. MOORE. I stand on the objection, your Honor.
MR. KATZMANN. Now, gentlemen, there is just one other thing.
MR. MOORE. May I ask for a ruling upon that? Do I understand your Honor to rule?
THE COURT. I will allow it to stand.
MR. KATZMANN. There is just one other thing l desire
MR. MOORE. Save an exception.
MR. KATZMANN. --to advert to in the matter of testimony then I am through. You will remember that when George Kelley was upon the stand first that a black bordered letter, indicative of the mourning type of letter was passed to him when he was asked in cross-examination by the defense if at a time in the spring or something like than in 1920 the defendant Sacco showed him a mourning letter and advised him of the death of his mother and he said "Yes." That letter that was shown to George Kelley was dated April 12, 1920, and written from Torremaggiore in the kingdom of Italy, thousands of miles away.
MR. JEREMIAH McANARNEY. Pardon me. There is no such evidence.
MR. KATZMANN. The letter speaks for itself.
MR. JEREMIAH McANARNEY. That is not the letter shown to him, and the evidence in this case is it was the letter from his brother that was written two or three days after the death of the mother that was shown to George Kelley.
MR. KATZMANN. I am talking about the letter, my brother that was
shown to George Kelley on the witness stand.
MR. JEREMIAH McANARNEY. He only said a letter was shown to him.
THE COURT. You must remember, gentlemen, what the evidence is; whatever counsel cannot agree what the fact is you must settle that question.
MR. KATZMANN. I want to say with the utmost good nature, gentlemen, when I listened to four hours of ,argument jointly, four hours and a half, on behalf of the defendants of these two learned gentlemen and after I heard misquotation after misquotation of the evidence, I knew that these two honorable gentlemen were giving the evidence as best they could remember it and I said to myself, "We have had six weeks long trial. These gentlemen are above misquoting the evidence and you 12 gentlemen will straighten it out and you will remember what it was," And I never arose from my chair to interrupt in argument. I realize that they are defending men on trial for their lives and I would not transgress and I have quoted you the evidence when they have interrupted before and I will quote it to you again.
I am not without some physical tiredness, but my recollection is still working 100 per cent, gentlemen, even though it is the close of a very long, very hot and very difficult argument to make, and I say to you that when I said that on the stand George Kelley was shown a letter dated 12th I meant that upon a fair summary of all the evidence, because you will recall in cross examination of the defendant Nicola Sacco I asked him what was the matter with the black bordered letter that was in the possession of the defendants' counsel and he said the trouble with it it was too late. Now, it isn't fair inference to him to refer to the letter he showed George Kelley then I regret to have made that statement.
There was another letter produced, gentlemen, yesterday, I believe,
one dated April 12, 1920, and it was too late for the defendant Sacco to
have shown it to his employer as a reason for going in on the 15th of April
and ask for a passport.
furthemore than that, gentlemen, without fear of contradiction I say to you that when Mr. Moore took the defendant Sacco, in hand for cross-examination on the matter of redirect examination on the matter of letters, he twice or thrice pushed Mr. Moore back when he said, "Which letter did you show to Mr. Kelley? Was it the first or was it the second letter-? (it being admitted that the first letter was from his brother Sabeno, the letter that he and his wife both testified was received along the 22nd or 23rd, or 24th of March) or- Nicola Sacco said to Mr. Moore in redirect examination, "It was the letter from my father."
I submit to you, gentlemen, that is the evidence, and Mrs. Sacco took the stand and said the Sabeno letter was received along the 22nd or 23rd of March and that 13 or 14 days after its receipt --I do not mean exactly or accurately she said, but about that-"May husband went to Boston to get a passport, to see or obtain information." That brings it about the take the 23rd of March, there are eight days left, about the 5th or 6th of April, and, gentlemen, the deponent Andrower over Italy says in the early part of April he was there at 11 o'clock in the forenoon.
Mind, you he has 150 or 200 applications for passport a day, or they
had in the consul's office, and that the 15th was a very slack day and
that he remembered that Sacco was in on that day because when he came in
with the family photograph of large size, taking in into the secretary
to the consul, they looked at it and laughed, Andrower says, and expects
12 men in the county of Norfolk to believe it. "I remember the day
because I happened to look at a calendar pad on the desk of the secretary."
Gentlemen, if I were to be hanged because I could not tell the day I have looked at a diary or a calendar since this trial first opened, I would be hanged 40 times a day. If you can tell me what day--mind you, this deposition was taken May 21, 1921 and he talking about April 15, 1920-if any one of you gentlemen can tell me the day that you, if you looked at a Calendar pad on the 15th day of May you possess mental attainments that are not human, and Andrower says he is sick.
And he goes on to say that it is of daily occurrence for family group pictures to be presented when a man who has a family desires passports. He does say this was the largest picture he ever saw and he remembers it that. way. Possibly he remembers the picture, but the way that he ties up to the all-important date of April 15th is because when he was laughing on that day--and is laughing so unusual a thing to him that he could remember it 13 months afterwards to May 1921--he happened to look at a pad, a calendar pad on a desk and he remembers it was the 15th of April.
Well, maybe you believe that, gentlemen. Maybe you have grown up to years of descretion and you accept that. That is his testimony. He worked there for some time. He gave two different dates as the time he ceased his employment. May 18th and May 20th, 1920. He had between 140 and 200, or the office had between 140 and 200 applications for passport on the average daily, and be could remember that in the early part of April Sacco came in, and that is what Mrs. Sacco says and Sacco himself said to me when I examined him in the police station at Brockton on the 4th or 8th or 10th and that he worried the day before he read in the newspapers of the atrocious Murders in South Braintree.
Now Gentlemen, I have tried you beyond what I ought. I trust you will overlook it in a public servant who is seeking to do his duty and to do no more. If I had my way I would not have trespassed upon your time or your strength at all, but I have been sworn here to perform a duty to the people of this district.
It is my duty as a public prosecutor to see that the constitutional guarantee to you, to your fellows, and to your families and friends within this district is upheld, to the end that your lives and your property and your safety may be assured. If I fail in the prosecution of my duty to use every honorable, every reasonable effort to keep that guarantee, under the constitution, then I am an inefficient public servant. My brother said this was a wonderful case for a district attorney. Gentlemen, this case means nothing whatever to me personally, I never laid an eye on these two defendants until the day of May 6th. I could have had no personal feeling. I possess none now whatever. I am struggling with all my humble ability to perform that duty impersonally against these defendants.
If the Commonwealth has satisfied you beyond a reasonable doubt that they are guilty, the Commonwealth expects you to say so like men of honor and like men of courage. And the Commonwealth expects you to say they are not guilty if it has failed to satisfy you in accordance with the requirements of law.
Make a decision, gentlemen, this case can never be more ably tried in the interests of these defendants than it has been in this trial, They have had their day in court, and the Commonwealth has had its day in court. Both parties desire a final decision on this accusation. In reaching that decision the Commonwealth asks of you that you sweep aside any consideration of personal pity, which I grant you must feel for these defendants, or for the wife and child of one of them.
A jury must decide the facts judicially. The question of where the truth lies here is a cold proposition of feet that is to be decided without any regard to those who may be deprived of a husband and a father by your decision. If you were to bring about a miscarriage of justice-and I know you won't—because you would allow feelings of sympathy to sway you from a just verdict, you would have failed in the administration of the law, and indeed the law itself would have failed. You are now between the verdict the most important cog in the wheels and machinery of justice, and if you fail to function properly the whole machine and public justice stops and is not administered properly.
Leave any consideration of sympathy for Mrs. Berardelli or sympathy for Mrs. Parmenter out of the case. Leave any sympathy for Mrs. Sacco or her boy out of this case. If her husband is guilty and the Commonwealth has proven it, he did not have sympathy for Mrs. Berardelli and Mrs. Parmenter, and he should have none extended to him.
The question is one of fact, gentlemen, arrived at under the rules of law. It been said to you that your decision will take away the lives of two men if it be that of guilty. Well, gentlemen, that is not so in one sense. You are not taking, away the lives of the defendants by finding them guilty of a murder of which they are guilty. The law takes their lives away and not you. It is for you to say if they are guilty and you are done. You pronounce no sentence of death. Does the physician who is called in to a patient who is dying and who administers all the skill that he possesses to seek a recovery and if the malady with which the patient is afflicted is fatal and that patient die, has the physician taken her life? You are the consultants here, gentlemen, the twelve of you, and the parties come to you and ask you to find what the truth is on the two issues of guilt or innocence. Gentlemen of the jury, do your duty. Do it like men. Stand together you men of Norfolk
Sacco & Vanzetti Trial Page