To go over this topic I'd like to Start at the beginning of the trial section where they pause to consider what the jury might hear, after the jury goes out, which comes just before where Missy's first post starts:
Trial:
(The jury and the witness withdrew from the court room.)
MR. MOODY. I perhaps ought first to state what the testimony is that we offer. We offer to show, in addition to what Prof. Wood testified to the other day with respect to prussic acid, that it is not an article in commercial use, that it is an article which is not sold except upon the prescription of a physician, and in prescriptions, and as a part, a minute part, of a prescription; that this witness during his experience as a drug clerk, up to the 3rd of August, 1892, never had a call for prussic acid; that it is not used for the purpose of cleaning capes, seal skin capes, or capes of any other sort, and has no adaptability to such use.
We now offer to show that upon the 3rd day of August, sometime in the forenoon, the time of which is not material, the prisoner came to this shop in which the man was employed and asked for ten cents worth of prussic acid, stating that she wished it for the purpose of cleaning capes, either seal skin capes, or capes, I am not quite sure which, and that she failed to procure the poison for which she asked. Perhaps I ought to state it with some accuracy.
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[Reads]:
"This party came in there, and inquired if I kept prussic acid. I was standing out there, I walked in ahead. She asked me if we kept prussic acid. I informed her that we did. She asked me if she could buy ten cents worth of me. I informed her we did not sell prussic acid unless by a physician's prescription. She then said that she had bought this several times, I think; I think she said several times before. I says, 'Well, my good lady, it is something we don't sell unless by a prescription from the doctor, as it is a very dangerous thing to handle.' I understood her to she wanted it to put on the edge of a seal skin cape, if I remember rightly."
"She did not buy anything, no drug at all, no medicine?"
"No sir." [Ends Reading]
Then follows merely the identification. I do not know in what way your Honors desire to hear the discussion.
MASON, C. J. Perhaps we had better hear the objection.
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MR. ROBINSON. I understand that the offer does not include facts to show that there was any sale.
MR. MOODY. No, sir.
MR. ROBINSON. And we perhaps may anticipate, but I believe it may be fair to ask whether there is any evidence of any sale to this defendant?
MR. KNOWLTON. No, sir.
MR. ROBINSON. In any other place?
MR. KNOWLTON. No, sir. It would be fair to say we have evidence to show some attempt to purchase prussic acid in another place, with the same negative results.
MR. ROBINSON. You propose to bring evidence upon attempts, but no success?.
MR. KNOWLTON. Yes, sir.
MR ROBINSON. It appears upon the testimony of Prof. Wood that an examination of the stomachs of the deceased persons showed no traces of any poison whatever, or anything but a normal condition. Certainly not any prussic acid. That was directly and fully negatived. So there is shown no connection, as assailing the lives of these two persons. In fact, this evidence only goes so far as to show, assuming that they may show it for the time being in this discussion, that she asked to buy prussic acid under precisely the circumstances that the offer is now made. She is charged in this indictment with slaying or killing these two people with a sharp instrument; committing the murder with an axe, for instance. Nothing else. Now here, if it has any force at
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all, suppose it were carried away up to its legitimate result, it is an attempt to charge her with an act causing death by a wholly different means, for which, of course, she is not now on trial.
And etc...
________
--It was OK to quote Pearson, because I think Missy was getting at Davis' opinion more so, because the court itself had such an anti-climatic ruling.
Judge Davis had written 46 pages published on "Conduct of the Law- The Borden Case," 1894. This Pearson section was an accessible source for Davis.
--My problem has been, not with the argument, but that it seems to me the legal minds who have tried to fathom this *ruling* seemed to give it more background than we actually see in court. It makes me think we are missing something.
I can only explain by saying why would the state try bringing in people who had fumigation experience if Lizzie never said what she wanted the prussic acid for? We don't have that link, as far as I can tell. Not from Bence, his cohorts or from Lizzie. So where did that come from? They seem to be arguing something we have not heard about. If it made it into court- she must have admitted to something- maybe? Otherwise where would they get the idea she wanted to kill moths or whatever?
--Anyway, I made some notes through my reading of this topic, which printed out is 27 pages!
--I'm just going to put my comments here.
--When Robinson gave the argument that:
"...And before any such thing can be shown, I say there must be substantive facts tending to implicate her in the charges for which she stands now on trial. Now I maintain that while this is not remote in time, it is entirely remote and distinct in connection, and foreign to this inquiry. And I emphasize it the more because the offer of the evidence
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in itself is so extremely lean, if I may say it..."
--It sounds like he is saying it is remote of connection. But it's not remote of connection because there are 3 witnesses with testimony ready who have been cleared to proceed by the state, plus there is evidence of prior illness of the family and Bowen's use of the word Poison as somehing Abby said to him. Also, this sounds like a Catch-22 argument on Robinson's part- they can't show that or prove that Lizzie committed the act of murder until all evidence is in and the jury renders a verdict, which seems to be a requisit before the poison story can be considered admitted- according to Robinson. (Do we have a *Smilie* to illustrate pulling one's hair out?)
--I think Robinson is taking prussic acid out of the "weapon" category and trying to put it into an innocuous object category, in a small part left out on this thread of the transcription of Robinson at the trial. It's the end of his argument:
pg1244:
"It is an attempt to buy an article which is used for other purposes. It is said that it is an article that is not used in the arts, but it is an article which a person may legitimately buy. Its sale is provided for under the statute, and it is not to be said that because a person may wrongfully use, in a distinct transaction, an article which she purchases, therefore its purchase has a tendency to show that he has comitted some other crime for which he is indicted."
--It sounds kind of like buying a plastic bag- a better analogy I think than a gun Davis uses. Because this is Robinson's argument, not the courts- the "wrongfully used" part. Robinson is talking about an item "a person may legitimately buy," it's legal and bought for "other purposes."
A plastic bag can be used as a weapon to smother someone- that is a "wrongfull use" of an innocuous item. You could say the same thing about a hatchet. It's legal, it has a legtimate use, but one can buy it and use it wrongfully- so too with prussic acid.
--Missy maintains that just because the murder did not take place on the 3rd (Robinson's argument) cannot negate the witnesses to her attempt to buy poison on the 3rd because
if she had succeeded, the murders might have very well occurred on the 3rd, just by different method than on the 4th. Personally I think this makes a lot of sense.
--Audrey asks why should this be introduced or allowed into evidence? I think the reasoning here and of the experts around that time is/was that the jury should decide. Not the judges- the jury. It seems indescriminate for the judge to just dissallow any of this testimony, when it's a jury trial. It should be introduced and left to the jury, I think is the opinion.
--Cynthia brought up the French Courts system, which I admit I had heard that too- and Audrey counteracted that with info that people in the French Judicial system are innocent until proven guilty- Twice.
Which I did not know.
--Tracy did a gun allegory based on what she believed was in response to Missy's mention of a gun analogy- but the gun analogy was by Judge Davis. So I think Tracy, you were really replying to Judge Davis' assertion and Missy was explaining his stance.
--If Lizzie had had a Prescription for prussic acid, then it would be considered for an *innocent use.* Because she didn't have a prescription, I think I get that Missy is saying then it's use must have been for illegal or nefarious purpose. This also makes sense to me.
I think, if Lizzie had a proven need for the prussic acid- and a Dr's prescription- then the court could throw it out as not germaine to the crimes. That's my take on the situation as argued so far by Robinson.
--The links on prussic acid, and the uses for it at the time of the late 1890's is useful info- showing how Lizzie might have come in possession of this knowledge at some point just by osmosis, is a good point (by Tracy)- a possibility- without thinking she had to have a recipe or have done any actual research on the subject. I'm not sure how poisoners come upon the information as to which poison they want to use, because in my crime reading experience it's usually a doctor or nurse or someone who handles medicine who is more prone to use poison.
I can't help thinking that if Lizzie did try to buy poison she asked for the wrong kind mistakenly. Maybe she blurted out the wrong thing? But then we have Knowlton, in reply to the court, sounding as though he is prepared to show Lizzie asked for prussic acid elsewhere! But did not buy it. That's big news, which we don't get to hear. Another Catch 22. Robinson thinks if she did not acquire it, then it doesn't count and is not admissable.
This supposed prior attempt- in the past- is really the attempt which should have been pursued by Robinson to be kept out and be the real reason the *experts* could not testify, and the real argument could be made as to its admissability as to its possible use or intent and being remote in time.
--And as Cynthia points out, "As an aside" about eye-witness testimony being suspect and the identifying of Lizzie was not impartial are all good points.
But at the time, they didn't seem to need such niceties as a proper line-up and the state obviously was satisfied with the veracity of their witnesses, Bence, Kilroy etc. enough to depend upon them at the trial to help prove their case.
--As for the title of this topic, it involves Pearson...so it seems he was the genesis of this discussion, and whether his view is valid and still stands our test. But we are the ones who must go to the sources and use those facts to back-up opinion. I should have- and usually do but didn't- open the trial and go see what Pearson was getting at by comparing his book with the document. That was my responsibility as a poster and I didn't do it, but I'm trying to do it now.
