Lizzie Borden Society Forum

It's been such chilly, gloomy weather here in Northern Virginia that I decided yesterday to have a private Borden film festival. I gathered all of my old VHS tapes and spent most of the afternoon watching them. As usual, I was shocked by the amount of misinformation they contained, and especially by the noted Lizzie authors who presented bogus facts. Two of the tapes (both A&E-produced, as I recall) had an odd factoid that I found unbelievable. They stated that Eli Bence's testimony (to the effect that Lizzie had tried to purchase Prussic acid on August 3, 1892) was excluded at trial because (a) the murders weren't committed by poisoning, and (b) the incident was too remote in time. I understand the first reason, but surely a less-than-24-hour gap couldn't be considered "remote"! I researched the matter this morning, going back to the trial testimony, and there's no evidence that "remoteness in time" figured in the court's decision to exclude. In fact, George Robinson himself agreed that the reported incident, if true, would have occurred close enough to the time of the murders to be relevant. He argued, however, that poisoning itself was "remote," because a different method was used to dispatch Abby and Andrew.
Viewing the tapes, I particularly enjoyed seeing the late David Kent, because I'd overlooked the fact that he introduced one of the tapes. Ditto Arnold Brown (also late, unfortunately) and such living legends as Len Rebello. Ed McBain's oddball rendering has some familiar faces playing either members of the Borden clan or other dramatis personae.

Wow, it was neat to hear about your finds. Your tapes are probably very valuable now that some of the people have passed on.
AS for Eli, I think even though the murders were not by poisioning, I would have if a judge kept the testimony because it goes to show "attempt" and by the way does anyone know when the house was searched did they ever find that baby seal whatcha call it she wanted to treat? If so I also would have included that into evidence.

Just reading over the arguments for excluding any evidence of prussic procurement (or the attempt thereof, rather.) Frankly, I'm aggravated - because at least as I read it today, at this moment (six minutes before two pm. EDT) - the logic in favor of excluding that testimony as illustrated in arguments by defense counsel makes perfect sense!

The intent to kill something is suggested by the Bence exchange of the 3rd, but that's it; the fact that someone (or a pair of someones) residing at 92 Second Street was killed within 24 hours of the failed purchase is immaterial. The language of the indictment (drawn undoubtedly from evidence gathered) is what sets the scene for excluding Bence's prussic testimony: "....an assault did make, and with a certain instrument, to wit, a sharp cutting instrument, the name and a more particular description of which is to the Jurors unknown...."

Intent, it would seem, is secondary to means or method. If not for that one little phrase attempting to describe the method or means... who knows?

It's odd to realize that even tho the judges allowed the testimony to be heard in the court before they rendered their opinion on it, with the jury out of the room, the story was presented in the opening remarks and so the jury knew about it already. They just never got to hear any testimony about it. I think this is really wierd. I mean, if it could be introduced casually at the start, real evidential testimony should have at least then be allowed and the jury exposed to the facts on oath.

Trial
Opening of the State
Moody
52
"Upon the noon of Wednesday, which you will keep in mind was the very day before these homicides, the prisoner went to a drug-store in Fall River, the situation of which will be pointed out to you, and there asked the clerk for ten cents worth of prussic acid for the purpose of cleaning a seal-skin cape. She was told that that was a poison which was not sold except on the prescription of a physician, and after some little talk went away. I think, gentlemen, you will be satisfied that there can be no question that the person who made this application for this deadly poison was the prisoner."

--I mean- this is prejudicial and I can't fathom why there wasn't an interruption here (tho I understand it is unusual to *Object* during "Arguments" or "Openings"/ "Closings") and also, how did/could the jury disregard these statements? When they were taken to the viewing of the Fall River landmarks this place was pointed out to them, according to the papers.

I believe they did find the sacks in the attic when they searched, but I'm not sure if it was Thursday or Saturday. I think they saw them Thursday.

Quite a few things are strange about the Borden trial if we look at it in a comparative context with modern trial procedure.

The things you mention though, Kat are specifically those which might stand in our modern age as examples of “contracts broken” (that is to say instances where counsel in opening statements might begin with “Ladies and gentlemen of the jury, what I propose to do here today is make with you a binding contract; under the terms of this contract we intend to prove to your satisfaction…”) in that these things are thrown out there at the beginning and left, never again to be touched by even a garden-variety ten foot poll. In that case, you hope and pray that the jury, when the time comes, will be in a forgiving mood, or have forgotten about the “contract” altogether.

One oddity – which actually touches more directly on your primary question (in the intellectual sense here) about opening statements – is the lack of a simple cautionary instruction often heard in our own day. For example:

“Gentlemen of the Jury, I would take a moment here to remind you that you are hearing arguments. Your decision at the close of this matter must be based upon a full and fair hearing of all evidence presented to you, only this and nothing more.

Arguments of Counsel are not evidence, and will not be regarded as such by you. Your verdict must stand fully, fairly, and squarely upon the evidence presented – the evidence and the relevant rules of law which I will give you prior to the start of your deliberations.

The evidence shall be your domain to turn and ponder as you please – but you will do so within the confines of the law as I give it to you.”

Another thing notably absent is a "Thou shalt not" admonition: "Don't talk about it, don't read about it, don't think about it - don't even tell your rubber ducky about it, no matter how trustworthy he has been in keeping other past secrets...."

Well, the jury was admonished as to what they could not do on their walk-about in Fall River.
They couldn't ask questions, they all had to look at what was pointed out to them, they could not discuss it, they could not strike out on their own or follow any lead anywhere other than where they were taken and they were only to observe.

Anyway, the bottom line was that the jury knew of the attempt to purchase a deadly poison without a mitigating reason in her favor by these opening remarks, yet they did disregard it somehow. They almost weren't human if they didn't discuss it in deliberation.
So that was one big thing which was supposed to be part of the weight of "evidence" against Lizzie at the trial which people think was never heard.
Since it was heard, that only leaves Lizzie's specific inquest answers which the court wouldn't allow, basically.

The television (and newspaper) reports on the Michael Jackson trial have been pointing out that the defense lawyers, in the opening statements, claimed they were going to call witnesses who never showed up and present evidence that was never presented. -So I guess this sort of stuff is still going on. Jackson's lawyers didn't trundle out Liz Taylor, for example. Jay Leno seemed to be of more help to the prosecution than the defense, since he said the accuser's family didn't try to shake him down for money. Frankly, I think the prosecution in the Jackson case had its work cut out for it. I'll be surprised if Jackson doesn't follow in Lizzie's footsteps and moonwalk right out of the courtroom door. Maybe ol' Michael should buy Maplecroft!

Exactly Edisto. The axiom seems to be "Promise your jury anything - even if in the end all you're able to deliver is a quart of warm milk." (Incidentally. you've left me with a most harrowing vision: The sight of Michael Jackson "moonwalking" down French Street.) Thanks, Kiddo....thanks alot!

doug65oh @ Thu May 26, 2005 12:14 pm wrote: (Incidentally. you've left me with a most harrowing vision: The sight of Michael Jackson "moonwalking" down French Street.) Thanks, Kiddo....thanks alot!

Yes thanks alot.

Oh Gawdess! You guys are so funny!

The non- appearance of the Bence testimony in the trial probably ( although given the eccentricity of the jury and judge , maybe not ) saved Lizzie's neck.


It showed that the day before the murders Lizzie had malice on her mind.


Talking of poisons, I'm re-reading a book on the Armstrong case, a British (debateable) Miscarraige of Justice from the 1920's.

Armstrong was hanged for the murder of his wife by arsenic poisoning. By contrast with the USA of the 1890's, where over the counter poisons where strictly controlled and difficult to obtain, in the UK one could stroll into a pharmacy and buy enough Arsenic to kill an army with only the pretext of weedkilling as the reason for purchase.

Weren't the British the first to by law require that arsenic be tinted with something, like charcoal?

Yes, correct, it usually was tinted with soot or charcoal, the fact that Armstrong had illegal white
arsenic in his possession ( the chemist forgot to tint it ) when arrested
did not help his case one bit.

I am not one who knows specifics about the care of furs, particularly a seal-skin cape. At that time, was the use of prussic acid as a cleaner (a treament of sorts ?), completely out of the question ? Do we have anyone here who has some experience with this subject ?


Tracy...

Admittedly, most of my knowledge of Prussic acid comes from reading about the Borden case. As I understand it, Prussic acid is quite an unstable substance and very dangerous to use. One of the experts at trial experimented by using it to kill some varied insects (he remembered some spiders, among others). It did easily dispatch them, so it wasn't that Prussic acid couldn't be used to kill insects. It was that the person using the poison might also dispatch himself/herself. Eli Bence warned "Lizzie" (if indeed it was she) that it wasn't safe for household use.
I'm sure most of us have read that supposedly the police had assigned a woman to go to various Fall River pharmacies and attempt to buy poison, just to see if they were adhering to the law. Supposedly this woman was someone who resembled Lizzie. Of course, it would have been helpful if the woman had been located and the defense had brought her to court to show the resemblance. It should have been easy to find her. The fact that she didn't turn up leads me to believe that story is bogus. Either there was no such woman, or the woman didn't resemble Lizzie.

Incidentally, I have a small glass bottle that has molded into it "Bence Pharmacy/25 North Street/Pittsfield, Mass." Rebello says Bence moved to Pittsfield some years after the murders and bought his own drugstore there around 1905.

In law prior bad acts are inadmissable unless they would directly relate to the crime being considered. A totally different mode of killing would never be considered, so irrespective of the time element it would certainly be disallowed. If a former incident of intent could be shown, such as if Lizzie had been violent towards her then parents (possibility depending on the court), or she had been known to poision others, it would be admissible, but clearly the poision in this case was out of bounds for prosecution.

This may be the woman referred to?

The Fall River Daily Globe, Monday, August 8, 1892, page 1+

"IN THE DARK"

"An Absurd Rumor."
..." An attempt was made on Saturday night to float the theory that Eli Bence, the drug clerk, had mistaken Miss Lizzie Borden for Mrs. Struckwald who purchases oleomargarine and face lotion for State Inspector McCaffrey. This is absurd. Mr. Bence may be mistaken, of course, but State Inspector McCaffrey's partner looks about as much like Miss Borden as she does like John L. Sullivan."

Also, The Globe has some interesting information as to the effects of prussic acid:

The Fall River Daily Globe, Saturday, August 6, 1892, page 1+

"TO THE GRAVE"


..."Diluted hydrocyanic acid is a transparent colorless, volatile liquid possessing a smell resembling that of peach kernels and a taste at first cooling and afterwards somewhat irritating. It imparts a slight and effervescent red color to litmus. It is liable to undergo decomposition if exposed to the light, but is easily kept in a bottle covered with black paint or black paper.

It is one of the most deadly poisons known and frequently, exceedingly rapid in its action. According to Dr. Christian, a grain and a half of the anhydrous acid is capable of producing death in the human subject.

One or two drops of the pure acid are sufficient to kill a vigorous dog in a few seconds. Sometimes death occurs almost instantaneously.

Usually, however, three stages of poisoning are manifest; a first very brief one of difficult respiration; slow cardiac action, and disturbed nervous action; a second violent, convulsive stage, with dilated pupils, more vomiting, often loud cries, unconsciousness, etc.; and a third closing period of asphyxia, collapse and paralysis, sometimes interrupted by convulsions. It is so rapidly fatal as a poison that physicians have seldom an opportunity to treat its effects.

Death usually takes place in from one to forty minutes, and at a period so long after death it would be needless to search for so volatile a poison. Physicians state, that it is the one poison in the long list of poisons which a person would choose if instantaneous death were the end in view. It acts directly upon the heart, and kills like lightning. Furthermore it is seldom used like other poisons in cases of sickness."

--It's interesting to note that they use the phrase "to kill a vigorous dog" in that I was reading about the early days of incorporating the city and one of the first orders of business, in alloting funds to the town- for such things as roads and schools, also included was providing for a pound. Apparently nuisance animals from the beginning were rounded up and held or killed from the early days on. These animals were considered at their worst potential for mischief in the summer months.

I have a question on Elie Bence. In reading the part about him in Rebello's book it's clear that before the trial he had never seen her. So, it's not like he recognized her when he claims she walked in. If I'm reading this right Bence was "...placed in a position where he [Eli Bence] could both see and hear Miss Borden, he was very positive in identification, not only of her face and general appearance, but also of her voice." Now in today's society, if I'm not mistaken, if you're a suspect and the police want someone to identify you then you're placed in a line up with several other people who at least look close to what you do. This way you try to avoid prejudice. But, with Bence this didn't happen. So, my question is, is how valid do you really think his claim is? I give it little to none since he was offered no other choices but Lizzie.

I don't even know that Bence was brought to Lizzie's house to identify her. It's made to sound like a *place where she was stopping* in some accounts.
I think there are contradictions about that.

Kat writes: I don't even know that Bence was brought to Lizzie's house to identify her. It's made to sound like a *place where she was stopping* in some accounts.
I think there are contradictions about that.

At the inquest Bence seems to be saying he did go to the Borden house to identify Lizzie. Is this in question, Kat?

" . . .We were busy with prescriptions at the time, I was alone at the time in the shop. About somewhere around eight o'clock Officer Doherty and Officer Harrington came up.
Q. Did you afterwards go to the house?
A. I did, yes sir.
Q. When was that?
A. I should say between eight and nine o'clock.
Q. What day was that?
A. That was the fourth, the day of the murder.
Q. When did you go to the house?
A. Eight o'clock in the evening after the murder.
Q. That same evening?
A. Yes Sir.
Q. Did you there see Lizzie Borden?
A. I did, yes sir.
Q. Where was she when you saw her?
A. In the kitchen, talking with Officer Harrington.
Q. Did you recognize her as the one that you had had the talk with the night [sic] before?
A. I did, yes sir.
Q. Positively?
A. I don't think I could be mistaken.
Q. How did you judge?
A. I judged both from seeing her before on the street, and also by a peculiar expression around the eyes, which I noticed at the time, and noticed then.
Q. Did you hear her talk?
A. I did.
Q. Did you identify the voice?
A. I did.
Q. You went in for the purpose of seeing if she was the one?
A. Yes Sir.
Q. Did you speak to her that evening in there?
A. I did not." (Inquest, 161-162)

I wonder how good the light was in the Borden kitchen between 8:00 and 9:00 p. m. on August 4. It sounds as if Bence was outside the house and Lizzie inside. The Bordens, of course, used oil lamps for lighting. Not only was there no lineup, but the conditions for identifying somebody couldn't have been ideal.

In his "witness statement," Bence says: "No, I do not know her, but think I would know her again, should I see her." (He doesn't mention having seen her on the street.) Yet he later testifies that he was able to identify her from having seen her before on the street.

I've discussed this on another thread, noting the fact that Bence seemed to become more familiar with Lizzie as time went on, possibly encouraged by his friends on the force.

Prelim
Bence
317
Q. When you were at the Borden house, you say you stood in the doorway?
A. Yes Sir.
Q. Did you stand in view of Miss Borden?
A. I did, I stood in view of her.
Q. Did she see you, were you in the open door, or behind the door?
A. I was in the doorway.
Q. You were not behind a door or obstruction, you stood right out, open?
A. I did yes sir.

>>>>>>

Thanks, Diana. You got me checking, also! Somewhere I got the impression that it was not positive Bence was at the Borden house, itself. Maybe I've read too many newspapers since the source documents!

"At D. R. Smith's drug store in the city they got the first important evidence.

Then approached the clerk, Eli Bence, and from him was learned that Miss Borden had been in the store within the 36 hours past and had inquired for a certain poison.

The clerk was asked to accompany the officials and was closely questioned as to the exact facts relative to the time, the girl's mental condition and the amount and quality of the poison she had bought or called for. The officers then led the drug clerk to a residence on Second street where Miss Lizzie was stopping for the time being. The young man had not previously been well acquainted with the young woman, but told them he could identify her at sight. He did identify her and in the presence of the police informed them that she was in his place of business and made inquiry for a bottle of poison.

Miss Borden's reply to the accusation as well as the exact language which was used at the time, is known only to the two officers.

The statement above made is correct and was verified in every particular by a Globe reporter last night within ten minutes after it happened."
--Evening Standard, Friday August 5, 1892 Page 6
"ASKED FOR POISON."


--------

Fall River Daily Globe, Aug. 5th, 1892, pg.1+
"Eli Bence, the clerk, waited on Miss Borden and very naturally refused to fill her order. He gave the matter no particular thought until the officers of the local force called on him some hours after the murder had taken place, and asked him to accompany them. Mr. Bence complied. It was reported that he was taken to the residence of Dr. Bowen on Second street, but Mr. Bence says that is not true. The policemen led him to the Borden house, and he was taken into the room where Miss Borden was seated.
What transpired there is not known, beyond the fact, as stated, that Mr. Bence recognized Miss Borden as the lady who had called at the store mentioned and inquired for hydrocyanic acid. She stated that she wanted to use it on furs. No reputable druggist will sell that acid unless the order is accompanied by a druggist's prescription. Even then, questions would undoubtedly be asked, unless the person who asked to have the prescription filled, were known.

Mr. Bence declines to state whether Miss Borden admitted that she asked for the poison or denied it, and the police who accompanied him are equally uncommunicative. As for Miss Borden herself, she is not aware that she has been interviewed on this subject by patrolmen or a druggist. The former were in citizen's dress when they called with Bence but Miss Borden has no recollection of their visit."

--My problem has been somewhat with a questioner in a hearing not asking the proper question- meaning their question is factually wrong sometimes.
Of course, that stands for newspapers as well.
Thanks, again.

***A. I judged both from seeing her before on the street, and also by a peculiar expression around the eyes, which I noticed at the time, and noticed then.***

i've always taken this to mean one thing, at least -- that bence had had a very good, thoughtful look at her.

Here again, I wish more specific questions had been asked. Bence says he was in the doorway and that Lizzie could see him. That probably means he wasn't in the doorway leading from the side entrance of the house into the entryway (the doorway where Lizzie was standing when Mrs. Churchill saw her). He was possibly in the doorway leading from the entryway into the kitchen. There's also a possibility he had been taken in through the front door and was standing in the doorway between the dining room and kitchen or the doorway between the sitting room and kitchen. I can almost see him standing there, hat in hand, staring hard at Lizzie, who is bathed in lamplight. I wonder why he wasn't simply taken into the kitchen and introduced to Lizzie. That would have given the officers a chance to observe whether Lizzie seemed to recognize him. Another curious encounter...

I just don't like the fact that Bence was brought to the house and he was shown Lizzie and only Lizzie. Too prejudical in my opinion. Eli may have been over eager to help the police.

In Rebello's book there's a little article on pg. 78 from the Taunton Daily Gazette where it says, " The demeanor of Miss Lizzie through the trying ordeal of being confronted with the man [Eli Bence] who says that she asked about poison was half contempt and scorn. In fact, her conduct as observed by the police since the affair happened, has been strange, inasmuch as she stood the pointed questions of all who interviewed her with the show of no other feeling than that of a disinterested party."
Now it could be that Lizzie was a tad freaked out at seeing Bence. By the time he enters the scene Lizzie must have realized she was indeed a suspect. Something she perhaps hadn't counted on. Now, here was a guy who had seen her trying to buy poison the day before the murders. Of course, it could also be she was disgusted by someone accusing her of something she hadn't done.


Later on, Rebello has a little article on how shortly after the trial a woman in Boston was surrounded by a crowd of people who thought she was Lizzie. Of course she wasn't. Eyewitness etc. can be wrong.

Just a note that the Rebello page 78 reference to the Taunton paper was dated August 6th.

This is so the "encounter" (if it happened) can be differentiated from a later one which was written up in the papers as having occured at the inquest. Supposedly Lizzie was confronted with Bence at the inquest.

Evening Standard
Friday, August 12, 1892 Page 8
"Miss Lizzie Confronted by Eli
Bence, the Drug Clerk"

"[Special Dispatch.]
Fall River, Aug. 11. --- At 3:30 o'clock this afternoon there was a wild and exciting scene in Court Square.

A hack drove up followed by a large crowd which had run after it from the Borden residence in the belief that arrests had been made.

As soon as an entranceway to the station could be cleared, City Marshal Hilliard alighted and he was immediately followed by Miss Lizzie Borden, her sister Emma and Mrs. George Brigham, who has been Lizzie's constant companion since the tragedy.

The party was at once ushered up stairs and once more the hack was dashing wildly away with officer Doherty its only occupant. Soon after the carriage returned and the policeman escorted into the station Eli Bence, the clerk in Smith's drug store, of whom Lizzie is said to have purchased or attempted to purchase poison.

Although the police declined to state exactly the nature of the proceedings, it is believed Bence has been summoned to make his statements when confronted by Miss Borden, and for purposes of identification."
.....

From The Sourcebook:

"The arrest had been expected all day. Lizzie Borden and her sister were brought down to the inquest again to continue their testimony. Instead of arrest what was wanted of her just then was to give her a last chance to explain some of the circumstances that look so black against her and the discrepancies in her statement.

She found there Bridget Sullivan, Eli Bence, the clerk from Smith's drug store, from whom she tried to buy poison, another drug clerk, Frank Kilroy by name, and
Medical Student Fred Hart.

She Said Nothing.

Lizzie did not say anything, and still paid no heed to what was going on about her. Emma Borden looked into her sister's face, and the tears began to run down her face, but she did not say anything."
--Page 51
The New York Herald, August 12, (?) 1892

--Personally, since the inquest was secret, I would think the reporters didn't really know if there was a confrontation at the inquest or not.
This is just to confuse everyone a little more.