Two witnesses claim to have identified Vanzetti as an occupant of the murder car.
(1) Harry E. Dolbeare testified that somewhere between 10 and 12 a. m. he saw a car going past him in South Braintree, with five people in it, one of whom he identified as Vanzetti. Q. “There was nothing that attracted your attention in this case except one man leaning forward as though he was talking to another man?” A. “Yes, there was.” But Mr. Dolbeare found it impossible to explain definitely what attracted his attention to this particular man, and finally explained that it was the appearance of the whole five that attracted his attention.
(2) Le Vangie, gate-tender of the New Haven Railroad, was on duty at the South Braintree grade crossing the day of the murder. He testified that the murder car drove up to the crossing just as he was lowering the gate. A man inside forced him, at the point of a revolver, to let them through before the advancing train. He identified Vanzetti as the man driving the car. His testimony was discredited by the testimony of McCarthy, locomotive fireman of the New Haven, who testified that three quarters of an hour after the murder, “Le Vangie said, ‘There was a shooting affair going on.’ I says, ‘Some one shot?’ I says, ‘Who?’ He says, ‘Some one—a fellow got murdered.’ I said, ‘Who did it?’ He said he didn’t know... I asked him if he knew them. He said no, he did not. I asked him if he would know them again if he saw them. He said no. He said all he could see was the gun, and he ducked.”
Moreover, Le Vangie was discredited by all the other identification witnesses on both sides, who insisted that the driver of the car was a young, small light-haired man, whereas, Vanzetti is middle-aged, dark, with a black moustache.
On the whole, the alibi for Vanzetti was overwhelming. Thirty-one eyewitnesses testified positively that none of the men that they saw in the murder was Vanzetti. Thirteen witnesses either testified directly that Vanzetti was in Plymouth selling fish on the day of the murder or furnished corroboration of such testimony.
Judge Thayer abandoned identification of Sacco and Vanzetti as the grounds on which the jury’s verdict rested, in denying a motion for a new trial. This motion was based on the discovery of a new eyewitness with better opportunity for observation than any of the other witnesses on either side, who swore that Sacco was not the man in the car. Judge Thayer ruled that this evidence “would simply mean one more piece of evidence of the same account and directed to the same end, and in my judgment, would have no effect whatever on the verdicts, for these verdicts did not rest, in my judgment, upon the testimony of eyewitnesses, for the defendants, as it was, called more witnesses than the Commonwealth who testified that neither of the defendants were in the bandit car.[1]
“The evidence that affected the defendants, was circumstantial, and was evidence that is known in law as ‘consciousness of guilt.’”
II.
Identification through “consciousness of guilt”
By “consciousness of guilt” Judge Thayer inferred that the conduct of Sacco and Vanzetti, after the murder, was the conduct of murderers. This inference of guilt was drawn from their behavior on the night of May 5th, before and after their arrest, and also from their possession of firearms.