“All of this looks very plain to me, sir. Cummings was arrested with a large amount of cash in his possession, and some one wanted it, and he was willing to give it up, provided he was set free. Two men, it is alleged, your honor, robbed the Walpole Bank. Mr. Shinburn was arrested and would do for one prisoner; but if Cummings were given his liberty, who would take his place? That was the question. Where was the second victim to come from? Ah, a thought strikes some one! A certain hotel keeper and liveryman in Stoneham let teams, according to the district attorney, to a man resembling Mr. Shinburn, one of the defendants here. Excellent! Grand idea! The liveryman was arrested, and was none other than Mr. George White, the other defendant here. The men behind this case got detectives from New York to journey to Stoneham and drag into this awful mess this respectable business man; and we find him in court before your honor to-day, the second victim, standing in the shoes which Cummings should fill. Is not this an infamous state of affairs, your honor? I charge that the district attorney set James Cummings free. I charge that Cummings did not take the five thousand dollars with him, and that the district attorney paid for the railway ticket that took him to Rochester. If ever there was a case of compounding a felony, then this is one. In view of all these facts, your honor, I say that the prisoners at the bar should be granted separate trials.”
Judge Doe had listened to this impassioned speech with much interest, apparently, but without any delay decided that Shinburn and I must be tried together. Asking for a moment in which to consult, Judge Cushion, and Mr. Woodward and the others of Shinburn’s and my counsel drew aside and earnestly discussed the attitude of the court and district attorney. My counsel believed me to be innocent and Shinburn guilty, yet in view of the ultimatum that both must be tried at once, it was a question whether there could be found a way to further fight for separate trials, or, bowing submissively to the ruling, proceed to establish a joint defence in which the innocent and guilty must stand or fall together.
“It’s sink or swim, gentlemen!” Judge Cushion told the others at the termination of the conference; and they returned to the tables.
Well, when court adjourned that afternoon, a jury to try us had been chosen, Sumner Warren being its foreman, and the preliminaries had been accomplished so that the prosecution was ready to call its witnesses the first thing the next morning. As for my feelings, they had undergone a great change since the convening of the court. All the fear that possessed me after the hearing at which I was denied a separate chance to prove my innocence, was upon me again. The hopefulness of the morning had resolved into the gloom of night. I must fight my way through the great cloud that beset me, handicapped by the case of a man I had no reason to doubt was guilty of the crime with which he stood accused. Linked with a criminal, I must prove my innocence or be convicted a felon.
My lawyers said there was no reason for me to feel despondent; that we would win despite all that was pitted against us; that there wasn’t any evidence upon which the jury could possibly base a verdict of guilty, though they might be ever so prejudiced. As to the jury being a fair and well-disposed body of men, Judge Cushion said he had no doubt of that. I took all this as poor comfort, however, and in my hotel that night there was precious little sleep for me. After a long, weary vigil, the dawn came, and with it the nerve-distracting trial, which lasted ten days.
I shall not go into the details of the testimony. Herbert Bellows was a witness, testifying to the ownership of the bonds found in Shinburn’s pockets; and another witness declared that Shinburn was a man he’d seen riding in a rig, between Walpole and Keene, early in the morning following the burglary, and upon being asked to identify the other man with Shinburn, said I looked very much like him. Detectives Golden and Kelso swore to the facts surrounding Shinburn’s arrest, and to the search in the Saratoga farm-house where burglars’ tools were discovered. Other witnesses told how I let horses and carriages to Shinburn, and drove him to Claremont and Keene, and that I had engaged a turnout from Layton Martin’s stables to do so. All of which I had done; but was it not horrible to sit and listen to the criminal construction placed upon these innocent acts? to listen to the motive attributed to me? And still other witnesses swore that I had accumulated a fortune in two years, that was impossible of accomplishment through honest means, and that being the case, I must have gotten the money somewhere, and why not from the Walpole Bank? At times I writhed under these damning words, and it was with the utmost difficulty that I was restrained, time and time and again, from springing to my feet and crying out that they who talked thus were liars. Glad I am that my friends made me hold my peace!
At last the prosecution rested and the defence called its witnesses. Frank Shinburn told the jury that his brother was a broker and that James Cummings placed the bonds in Mark’s hands for sale. Shinburn’s sister corroborated him. On cross-examination this testimony was shaken, particularly that of the brother. Mrs. Kimball and her daughter testified that they dined with Shinburn and Billy Matthews at the Revere House in Boston at the very time District Attorney Lane alleged he was in Keene plotting the burglary. These women were honest in giving this testimony, but a subsequent examination of the hotel register showed that the dinner took place the day after the robbery. William Matthews swore that Shinburn was a broker who did much business in Wall Street, New York City, and that he had often sold bonds for him, and that he’d dined with the prisoner and the two women in the Revere House, Boston, as had been testified to.
My witnesses from Boston testified to the business which took me to that city every day, from ten o’clock in the morning until evening. The time for every day in the week prior and after the burglary was accounted for. One of my partners in the Boston firm of Towle & Seavy told of the manner in which I had accumulated wealth. Several bank officials testified to the dates on checks which showed where I was at vital moments,—the moments when I was supposed to be actually engaged in robbing the Walpole Bank. A number of witnesses testified to various business ventures in which I was engaged with John M. Way and several other reputable business men, and how many checks passed in this business; and Charles Meriam, a broker of Boston, swore to the sums of money that he received and invested for us, all of which made a perfect accounting of the prodigious wealth which the district attorney had conjured up against me. A. V. Lynde went on the stand and told of my real-estate transactions with him; how I had bought tracts of land from him and how I had dealt at all times honorably. My clerks, Ellis Merrill and Fred Benson, told in detail of my strict attention to business; of how I got up every week day at five o’clock in the morning, attended to my business in Stoneham, and leaving that in charge of my employees, went to Boston to look after my business interests there. After finishing in Boston I would return to Stoneham to look after things at the close of the day. In fact, all of my time was well accounted for, making a complete alibi. Ellis Merrill testified to the fact that he had been the first to meet Wyckoff and Cummings at the Central House; that I was away when they came, and that he let a team to them of which I knew nothing until my return from Vermont. All these witnesses testified to my splendid business and social reputation, my honesty, veracity, and integrity. Fully twenty witnesses, all intimate friends, took oath on my behalf, to combat the testimony of a few witnesses, none of whom could swear positively to a point against me, except that I drove about the country a man who, they swore, was Shinburn.
Shinburn was not wanted by his counsel to take the witness stand; but I impatiently awaited my time to tell what I could, in the minutest detail, of my movements that could in any way be dragged, even by conspiracy, into the case. At last Judge Cushion called my name, and I arose to testify. District Attorney Lane was on his feet in an instant, protesting loudly that I had no right to witness for myself, that it was contrary to the New Hampshire laws; and he quickly quoted from the statutes.
Judge Cushion answered back in clarion tones, that, law or no law, I must be given an opportunity to explain many circumstances; that the law of God and common sense entitled me to every opportunity to prove my innocence. He declared that I could easily explain away all the ugly suspicion that attached to me through my association with the bogus United States deputy marshal. But it was a fruitless argument for me. Judge Doe decided that I could not testify on my own behalf, and in this manner another thong was added to those already binding the millstone to my neck. The remainder of the trial was a vague dream to me. Judge Cushion made a masterly plea for the defence, and Assistant District Attorney Wheeler, the brightest legal brain then attached to Mr. Lane’s office, wove a web of evidence about Shinburn and spoke of my suspicious acquaintance with the man Wyckoff. I know the judge wept as he pleaded my case, and I know that Lawyer Wheeler was bitter in his arraignment of Shinburn. Standing out prominently in my memory, however, are the words he chose in closing his “summing up” for the prosecution. They were directed to the witness William Matthews.