“At no time was I able to find any evidence whatever which tended to convince me that the particular mortal bullet found in Berardelli’s body, which came from a Colt automatic pistol, which I think was numbered 3 and had some other exhibit number, came from Sacco’s pistol, and I so informed the District Attorney and his assistants before the trial.
“This bullet was what is commonly called a full metal patch bullet, and, although I repeatedly talked over with Captain Van Amburg the scratch or scratches which he claimed tended to identify this bullet as one that must have gone through Sacco’s pistol, his statements concerning the identifying marks seemed to me entirely unconvincing.
“At the trial the District Attorney did not ask me whether I had found any evidence that the so-called mortal bullet, which I have referred to as number 3, passed through Sacco’s pistol, nor was I asked that question in cross-examination. The District Attorney desired to ask me that question, but I had repeatedly told him that if he did I should be obliged to answer in the negative; consequently he put to me this question:
“Q. ‘Have you an opinion as to whether bullet number 3 was fired from the Colt automatic which is in evidence?’ To which I answered, ‘I have’.
“He then proceeded, Q. ‘And what is your opinion?’ A. ‘My opinion is that it is consistent with being fired by that pistol.’
“That is still my opinion, for the reason that bullet number 3, in my judgment, passed through some Colt automatic pistol; but I do not intend by that answer to imply that the so-called mortal bullet had passed through this particular Colt automatic pistol, and the District Attorney well knew that I did not so intend, and framed his question accordingly. Had I been asked the direct question, whether I found any affirmative evidence whatever that this so-called mortal bullet had passed through this particular Sacco’s pistol, I should have answered then, as I do now, without hesitation, in the negative.”
Frederick G. Katzmann, who was District Attorney at the time of the trial, and Harold P. Williams, later his successor, filed affidavits on this motion. Mr. Katzmann stated that Captain Proctor told him that it was his opinion that the mortal bullet had been fired from “a” Colt automatic pistol. He did not say that it had been fired from Sacco’s pistol. Mr. Williams said that Captain Proctor could not tell through what pistol the mortal bullet had been fired. He also denied that Captain Proctor’s attention had been “repeatedly” called to the question whether he could find any evidence which would justify the opinion that the death bullet came from the Sacco pistol.
In a sense the gun-and-bullet testimony is the crux of the case, for Judge Thayer, in his charge to the jury, said in substance that the jurors should consider Captain Proctor’s testimony that the death bullet passed through Sacco’s pistol. In his summary the District Attorney said to the jury, “You might disregard all the identification testimony and base your verdict on the testimony of these experts.”
Additional new evidence to prove that the death bullet could not have been fired from Sacco’s pistol was furnished to the court in the micro-photographs made by Albert H. Hamilton, who has offered expert testimony in many murder trials in which photographs taken under a compound microscope have been placed in evidence.
Taking the mortal bullet and test bullets fired through Sacco’s pistol, Mr. Hamilton pointed out several markings in the mortal bullet which he said did not appear in those that were fired as a test. The prosecution sought to show many similarities in the marking of both exhibits.