1. "Murderess and/or accomplice"
Posted by harry on Jun-4th-03 at 1:15 AM

This is from page 1914-15 of the trial, in Dewey's charge to the jury:

"Now, gentlemen, I have been asked by the counsel for the Commonwealth to give you instruction upon another view of this case, a view, so far as I remember, not suggested in the opening, or in the evidence, or hardly in the closing argument for the Commonwealth. And yet the evidence is of such a nature that it seems to us that, as a matter of law, the Government is entitled to have some instruction given you on this point; as a matter of fact, it would be entirely for you to consider whether the claim of the Government upon the matter to which I am going to refer is consistent with the claim which it has argued to you; whether the Government has not put this case to you, practically, upon the idea that the defendant did these acts with her own hands.

But it is a principle of law that a person may be indicted in just the form in which this defendant is indicted, that is, indicted as if she were charged with doing the act herself, and yet she may be convicted upon evidence which satisfies a jury beyond reasonable doubt that the act was done personally by another party, and that her relation to it was that of being present, aiding, abetting, sustaining, encouraging. If she stood in such a relation as that to the act, the act was done by some other person and she aided him, encouraged him, abetted him, was present somewhere, by virtue of an understanding with him, where she could render him assistance, and for the purpose of rendering assistance, then she would be a principal in the act just as much as the other party who might be acting.

...... There must have been an understanding between her and her and this third party, if there was one, an agreement together for the commission of these crimes. She must have given her assent to it. She must have encouraged it. She must have been in a position where she could render assistance to the perpetrator, with his knowledge, by virtue of an understanding with him, and for the purpose of giving assistance either in the way of watching against some person's coining or furnishing him facilities for escape or in some other manner. The central idea of this proposition is that she must have been present by virtue of an agreement with the actor where she could render assistance of some kind, and for the purpose of rendering assistance. And if there was another party in this crime, and if she is proved beyond reasonable doubt to have sustained the relation to him in committing that crime which I have expressed to you, then she might be held under this indictment, because under such circumstances in the eye of the law, they both being in the sense of the law present, the act of one is the act of both."

So Lizzie is being tried as the murderess and/or accomplice.  That would mean if new evidence turned up later she could not be tried again , even as an accomplice.

Up until that ending paragraph it was sounding like the Jury could bring a verdict of their own accord as to a lesser charge, which I believe jury's are allowed to do.

In the Knowlton Papers there are a back-and-forth set of communiques on the grand jury question as to instruction of charges which could be included in their Indictments.
Having passed down 3 Indictments...see Knowlton Papers, pg. 111-112, 113-114, & 115-116 which appear here, there follows a letter similar to this next one, where Knowton explains to Pillsbury how he handled the info on "principals and accessories" (#HK114, dated Dec. 3rd), but notice these extra charges are not included in the Indictments.

These 2 letters are previous to the grand jury finding, dated Nov.22, 1892
"#HK096
Letter, typewritten.

HOSEA M. KNOWLTON. ARTHUR E. PERRY.
COUNSELLORS AT LAW.
OFFICE:
38 NORTH WATER STREET.
{Dictated.}
NEW BEDFORD, MASS., November 22, 1892.

Hon. A. E. Pillsbury,
Attorney-General.
Dear Sir:-
     I did not have time to write so fully as I desired
about the sanity business. I could do nothing whatever with Jennings. He
took exactly the position I feared he would, and seemed to regard it as
some sort of surrender if he consented to anything. We can make some
investigations into the family matters without him, but it will not be so
thorough as it would be if we had his assistance.
       I note your suggestions about form of indictment, which I will adopt if
we ever get so far; of which, however, I am far from certain.

Yours truly,
H. M. Knowlton"

...........

Page 99

"#HK097
Letter, typewritten.

HOSEA M. KNOWLTON.      ARTHUR E. PERRY.
COUNSELLORS AT LAW.
OFFICE:
38 NORTH WATER STREET.
{Dictated.}
NEW BEDFORD, MASS., November 22, 1892.

Hon. A. E. Pillsbury,
Attorney General.
Dear Sir:- I see no need of account for accessory.
If she did not do the killing, but only instigated some one else to, it can
hardly be said that she was not so far present as to make her principal, for
she was certainly in the house, and in hearing of both murders.
        It had occurred to me, however, since I saw you, that the jury should
be instructed as to the principles of law relating to principal and accesso-
ry; and, if you see no objection, I propose to state to them the law upon
that subject.
        I have already written you about Jennings, and you have probably seen
him before this time.
Yours Truly,

H. M. Knowlton"
...............

I suppose what you provided WAS the law, but it seems to me those charges should have been included in an Indictment, even if they had to separate the charges.
The wording was that she Lizzie willfully and intentionally and with aforethought did kill with a weapon.  (Not exact wording).
It's odd they spell that out so clearly 3 times, yet no mention of *standing watching*  or *helping* ....
--If all that is implied in the Indictments that doesn't seem quite fair.  It's not exactly written down for the farmers and plumbers on the jury to be able to refer to.

Thanks Kat.

It just struck me as so odd that it was Dewey in his charge to the jury who brings the subject up.  And at one minute to midnight, as far as the time of the trial is concerned.

What the prosecution is saying is: Even if we didn't submit any evidence of another person, if you can't convict her of acting alone, convict her as an accomplice. I recognize in legal terms there may be no difference but the indictments don't mention it and specifically charge Lizzie doing the "striking, beating, etc."

Since it was the prosecution that requested Dewey put it forward to the jury, it looks like an act of desperation on their part.

(Message last edited Jun-4th-03  8:14 AM.)

In effect, Judge Dewey says "you can convict Lizzie if she didn't do it, but was part of a conspiracy". Refer to "conspiracy laws".

Yes, I think Isee what you mean, Har.
That is almost pitiful.
After throwing out the Inquest testimony of Lizzie and sending the poison experts packing, the court probably thought it was the least they could do to give this point of law on accessory.
Yes, it is too late.  He clearly states (pulling the rug out once again) that it was up to the jury to review in their minds whether the standards for accessory were met though it was never brought up therefore there was not supporting evidence.  Sounds like a Catch-22 for the Prosecution.
Is that the correct understanding of this example you have put forth?

Would you agree the charge to the jury was to help them to say "not guilty"? To see that justice was done, and not let an innocent be convicted? Easier to believe than a pay-off to let a murderess go free? Note how AR Brown's solution fits the known facts.