CHAPTER XXXII.
Judge Dewey’s Charge to the Jury.
The chief justice addressed the prisoner as follows: Lizzie Andrew Borden—Although you have now been fully heard by counsel, it is your privilege to add any word which you may desire to say in person to the jury. You now have that opportunity.
The prisoner arose and responded: “I am innocent. I leave it to my counsel to speak for me.” The charge to the jury was then delivered by Mr. Justice Dewey, as follows:
Mr. Foreman and Gentlemen of the Jury—You have listened with attention to the evidence in this case, and to the arguments of the defendant’s counsel and of the district attorney. It now remains for me, acting in behalf of the court, to give you such aid towards a proper performance of your duty as I may be able to give within the limits for judicial action prescribed by law; and, to prevent any erroneous impression, it may be well for me to bring to your attention, at the outset, that it is provided by a statute of this state that the court shall not charge juries with respect to matters of fact, but may state the testimony and the law.
I understand the government to concede that defendant’s character has been good: that it has not been merely a negative and natural one that nobody had heard anything against, but one of positive, of active benevolence in religious and charitable work. The question is whether the defendant, being such as she was, did the acts charged upon her. You are not inquiring into the action of some imaginary being, but into the actions of a real person, the defendant, with her character, with her habits, with her education, with her ways of life, as they have been disclosed in the case. Judging of this subject as reasonable men, you have the right to take into consideration her character such as is admitted or apparent. In some cases it may not be esteemed of much importance. In other cases it may raise a reasonable doubt of a defendant’s guilt even in the face of strongly criminating circumstances. What shall be its effect here rests in your reasonable discretion. I understand the counsel for the government to claim that defendant had towards her stepmother a strong feeling of illwill, nearly if not quite amounting to hatred. And Mrs. Gifford’s testimony as to a conversation with defendant in the early spring of 1892 is relied upon largely as a basis for that claim, supplemented by whatever evidence there is as to defendant’s conduct towards her stepmother. Now, gentlemen, in judging wisely of a case you need to keep all parts of it in their natural and proper proportion, and not put on any particular piece of evidence a greater weight than it will reasonably bear, and not to magnify or intensify or depreciate and belittle any piece of evidence to meet an emergency. I shall say something before I have done on the caution to be used in considering testimony as to conversations. But take Mrs. Gifford’s just as she gave it, and consider whether or not it will fairly amount to the significance attached to it, remembering that it is the language of a young woman and not of a philosopher or a jurist.
The Jury.
What, according to common observation, is the habit of young women in the use of language? Is it not rather that of intense expression, whether that of admiration or dislike? Consider whether or not they do not often use words which, strictly taken, would go far beyond their real meaning. What you wish, of course, is a true conception of the state of the mind of the defendant towards her stepmother, not years ago, but later and nearer the time of the homicide, and to get such a true conception you must not separate Mrs. Gifford’s testimony from all the rest, but consider also the evidence as to how they lived in the family, whether as Mrs. Raymond, I believe, said, they sewed together on each other’s dresses, whether they went to church together, sat together, returned together, in a word, the general tenor of their life. You will particularly recall the testimony of Bridget Sullivan and of defendant’s sister Emma bearing on the same subject. Weigh carefully all the testimony on the subject, in connection with the suggestions of counsel, and then judge whether or not there is clearly proved such a permanent state of mind on the part of defendant toward her stepmother as to justify you in drawing against her upon that ground inferences unfavorable to her innocence. The law requires that before a defendant can be found guilty upon either count in the indictment every material allegation in it shall be proved beyond a reasonable doubt.
Now you observe, gentlemen, that the government submits this case to you upon circumstantial evidence. No witness testifies to