Mary Durfee's Excluded Testimony

[augusta]

Mary Durfee, of 124 Second street, was walking past the Borden house some time prior to October 27, 1892. She "saw Mr. Borden standing in door talking with a man; heard angry words; heard the man say to Mr. Borden, 'You have cheated me and I'll fix you for it.'"

Her testimony was excluded because it was deemed too remote in time.

Should her testimony have been allowed, or do you think it was right for the Court to exclude it?

(Trial, page 1353)

[stargazer]

If it were allowed, I imagine that many people would have stories about Andrew's tiffs and "enemies." He probably rubbed a lot of people the wrong way. I often wonder if he might have been a kind of male Hetty Green.

[diana]

This testimony is confusing and intriguing for a couple of reasons. First, because Mary Durfee doesn't seem comfortable admitting she'd heard Andrew talking to a man prior to August 27, 1892 -- which would have been impossible as Andrew had been dead for about 3 weeks by then -- and then because it appears as though it's the prosecution rather than the defence who is trying to fix the time of the incident close to the murders.

MARY A. DURFEE, Sworn.

"Q. (By Mr. Jennings.) What is your name?
A. Mary A. Durfee.
Q. Where do you live, Mrs. Durfee?
A. Mr. Clark's house, 124 Second Street.
Q. Did you know Andrew J. Borden when he was alive?
A. Yes, sir.
Q. Do you know where his house is or was upon Second Street?
A. Yes, sir.
Q. Are you familiar with the premises?
A. Yes, sir.
Q. I call your attention to a time when you saw a man there upon the steps talking to him. Do you recall a time when you saw a man upon the steps talking to him?
A. Yes, sir.
Q. When was it?
A. Well, it was some time before the murder.
Q. Was anything in the nature of a threat---

MR. KNOWLTON. I beg your pardon; wait. Won't you fix the time more perfectly.

Q. Can you tell any nearer than that, Mrs. Durfee?
A. Well, no, I cannot; it was before Thanksgiving, I know.
Q. Before the previous Thanksgiving?
A. Yes.

MR. KNOWLTON. If your Honors please, I desire to object to the evidence. We have been very careful not to expose the nature of any evidence and I do not suppose our friends want to either. I am aware of the nature of the evidence. I might ask counsel whether they expect to connect this in any way, any further than this circumstances would of itself connect it? [Maybe a more legal-minded member on the forum could tell us what this means?]

MR. ROBINSON. Not at present. We will not discuss that just now, at this time, I mean.

MR. KNOWLTON. Well, it might have to do with the admission of the evidence.

MASON, C. J. Perhaps counsel can fix the time a little more accurately.

Q. How near Thanksgiving would you say this was, Mrs. Durfee?
A. Well, I couldn't say; I couldn't say that.
Q. Well, do you locate it as about Thanksgiving time, is that what you mean?
A. Well, I lost my sister, and I know it happened after my sister died, and she died the 27th of October, I believe. The 27th of October she died. And what I heard I heard before then, because I went home and told it. [What does she mean by “it happened after my sister died? Is this a slip of the tongue or a typescript error? I'm guessing she means to say 'before'?]
Q. How long before that?
A. Well, I couldn't say, because it didn't trouble me any, or I didn't---
Q. Well, is that the time that you fix it by?
A. Yes, I was going for medicine for her, and as I was coming home---

MR. KNOWLTON. I beg your pardon. And may I ask a question, your Honor, as to that subject?

Q. (By Mr. Knowlton.) Didn't you tell me that it was two months before your sister died, you thought? [Whose witness is this? Why would Knowlton have interviewed her? And why is the prosecution trying to place the incident closer to the murder time frame?]
A. No, I don't know as I did, because I couldn't.
Q. Well, don't you think it was about two months before your sister died?
A. Well, it couldn't be any more.
Q. Well, don't you think it was about that?
A. Well, my sister was taken to her bed the second time.
Q. And don't you think it was about two months? [Notice Knowlton is still pressing for an August time frame]
A. Well, it wasn't any more.
Q. (By Mr. Jennings.) Well, do you think it was as much as two months?
A. Well, I shouldn't judge it was, I didn't put the day or the date down.

MASON, C. J. It seems to the Court too remote, and it is excluded.

MR. JENNINGS. I would like to put it in proper form, your Honor. I don't know that it is quite subject to exception, but I would like to save the right if it is. I have it stated here; I do not care to read it aloud.

The defence offered to prove that [the] witness saw Mr. Borden standing in door talking with a man; heard angry words; heard the man say to Mr. Borden, "You have cheated me and I'll fix you for it."

This was objected to by counsel for the Government and was excluded by the Court, to which ruling the defendant excepted." (Trial 1351-1353)

So it's Jennings question that puts the evidence on shaky ground timewise.

And sorry, -- as far as the original question as to whether it should have been excluded, I've got nothing.

[Yooper]

It may be that since the witness seemed confused about the time the incident occurred, perhaps some confusion about the substance of the testimony can be inferred. What I'm getting from the exchange is that the incident referred to happened some nine or ten months prior to the murders, making it remote in time with respect to the murders, or it occurred a month or two after the murders, clearly an absurdity. About all the defense might have accomplished with the testimony would have been to show that Andrew had heated words with someone in public. The phrase "I'll fix you for it" might mean anything.

I'm guessing that Knowlton might have interviewed the witness first if she had come forward not knowing which side her testimony favored. She may not have realized her testimony tended to support an intruder scenario, so she simply found the prosecutor's office and offered her information.

In any case, the court ruled the testimony inadmissible due to remoteness in time, which works from either direction! Just another thought, maybe they were trying to not embarrass the witness for some reason, age, infirmity of some sort, etc.

[DJ]

Yes, too remote, if it happened any time before the close of 1891.

However, if true, it could've given Miss Lizzie an idea or two, if she were on the premises and overheard.

Also, if true, it supports the Scroogier theories of AJB's business practices.

For such a self-made man, AJB's seeming lack of good judgment strikes me on two fronts:

(1) That he put up with Emma and Lizzie in the same household after so many unpleasant incidents regarding property. The incident with Abby's half sister ought to have been the first and final straw. He ought to have moved them out, or moved himself and Abby out. It wound up costing him in the long run-- probably up to and including his life.

If he suspected that Lizzie committed the daylight burglary of summer 1891, why he tolerated the status quo of the household is beyond me.

(2) That he conducted business at home, allowing potentially hostile clients, associates, lessees, etc. into his private domicile.
He could have easily had a small office at one of the banks, or in one of his own bldgs., for that purpose.
No wonder Bridget kept the screen-door locked.
Bet Lizzie heard an earful, too, of Andrew's business.

[augusta]

Diana, thanks for posting the testimony. I didn't because I thought it might be confusing, but rereading it it made more sense to me.

Ms. Durfee obviously meant October, 1891. That's about 10 months before the murders.

She was a defense witness. But Knowlton jumped in, that rascal, to accent how very long ago she saw someone there. That is good for the prosecution because Knowlton could say, "Look, jurymen. It was not an isolated incident if someone argued with Andrew Borden at his home. Why way back in August a man did, and one would not think it would take him ten months to kill him."

I think Andrew wanted all the rent money he could get so did not want to take up an office space in one of his buildings for his own use. But he may have been planning to have his own office in the AJ Borden Building. Interesting post, DJ.

That's true - that Lizzie could hear some good stuff by businessmen coming to the house. I hadn't thought of that, or the fact that he didn't have an office in town.

I have the impression that Andrew was very well respected by his fellow businessmen. If you read "The Lizzie Borden Sourcebook" newspaper clips about the funeral, they tell of it and how as the two hearses clopped by businessmen tipped their hats. But on the other hand, maybe he was not liked by his peers and they did it for show.

But I have been under the impression that his peers approved of him, but he was a tough one when it came to tenants and any money owed him. He even charged his own sister some paltry amount for some little thing over their father, Abraham's, house when he got it. (I think that is in Rebello.)

I don't think he tolerated Lizzie's actions after the daylight robbery. Wasn't that when the locking of his room started? And the key being put in plain sight of her on the mantle?

But, yeah, they all still lived together in that claustrophobic house. I do wonder why Andrew - and also especially since Abby was so miserable living with 'the girls' - didn't buy them a little house just for them ('the girls'). Maybe they were offered it and they thought they would wait around for better things ...

BTW, tho I had read about Lizzie for years before I finally got inside the murder house, and I had read how the rooms all opened into one another and how rotten it was to have lived in, it really didn't hit home with me until I saw the inside of that house. I cannot imagine myself living in a house like that, and my family gets along swell.

[snokkums]

If it were allowed, I imagine that many people would have stories about Andrew's tiffs and "enemies." He probably rubbed a lot of people the wrong way. I often wonder if he might have been a kind of male Hetty Green.

I don't think that testimony would have helped much. People already knew that Andrew wasn't well liked. From what I've always read, he was well respetecd but not well liked and he was a tight wad.

[nbcatlover]

I'm totally lost so far on this one. diana's pont about trying to understand if the incident happened before or after her sister's death raised a red flag for me.

There was a Mary A. Kelley who married a William Durfee. There was also a Mary Durfee in F.R. who was born a Borden. There are probably more Mary Durfee's in Fall River at this time.

Do we know who Mary A. Durfee is? It might make a difference weighing the importance of the evidence which was excluded.

Also, did the infamous 'Kelley girl" with whom Bridget conversed over the fence on the day of the murder ever testify at the inquest or the trial? I don't ever recall police notes on the Kelley girl.

There has to be some reason Robinson thought this testimony would be important despite the time frame

If this is from the trial (held in 1893) and her sister died on October 27, are we talking 1892? Or is she talking about the year prior to the murders...referencing Thanksgiving of 1891 with her sister's death being October 27, 1891?

If Mary is referencing the Thanksgiving of 1892 and her sister died October 27, 1892, two months before would be July 27, 1892 (a time when both Emma and Lizzie were away from the Borden home!!!)

[Yooper]

The defense would have had an interest in showing that it was relatively common for Andrew to make enemies, especially those who might have threatened him. Robinson was likely trying to show that an intruder might have been a greater possibility as the perpetrator in Andrew's murder than people might have thought. Just the fact that Andrew inspired threats from people would have done the trick, regardless of when the incident occurred, it would have stuck in the back of the jurors' minds.

The trouble with this particular testimony is the uncertainty about the time. Since the witness is so completely uncertain about when it happened, even in spite of prompting, how can anyone accept what she might say beyond that as accurate? If she was referring to 1892, it sounded all the more foolish because two months before October 27 was August 27.

I think once the attorneys recognized how shaky the testimony was, they abandoned the attempt. The prosecution wanted it excluded and the judge did this out of hand. They never got to whether she was talking about 1891 or 1892, it was no longer important.

[nbcatlover]

By George, you are right, Augusta! I counted on my fingers and I should have used my toes! If she were refering to August 27, it would have to have been 1891 that she was referring to...which was quite a while before the murders. This is the same problem if she were referring to 2 months after her sister's death.

I really wish I knew who she was...have to do more digging.

Finally figured out that the Kelly girl was Mary Doolan.

I've had no time to focus on the Bordens lately...I feel like I''ve forgotten what I once knew.

Thanks.

[diana]

I agree with Yooper that the testimony is so muddled it’s useless as it exists. Jennings tries to get the gist of it admitted in a more meaningful form – but even then -- because we lack any precise context of time, it cannot carry too much weight.

I’m guessing the defence tried to have this testimony introduced in order to bolster Lizzie’s reports of an angry man coming to the house. On the day of the murders, she tells the police her father and a man quarrelled because Andrew refused to lease a store to him and she indicates the man made at least two visits to the house.

“ . . . a few weeks ago father had angry words with a man about something”. “What was it?” “I did not know at the time, but they were both very angry at the time; and the stranger went away.” “Did you see him at all?” “No sir they were in another room; but from the tone of their voices, I knew things were not pleasant between them.” “Did father say anything about him, or his visit?” “No sir. About two weeks ago he called again. They had a very animated conversation, during which they got very angry again. I heard father say “no sir, I will not let my store for any such business.” (Lizzie Borden: Witness Statements, p.5)

Then, at the inquest the issue is raised again:
“A. There was a man that came there that he had trouble with, I don't know who the man was.
Q. When?
A. I cannot locate the time exactly. It was within two weeks. That is I don't know the date or day of the month.” . . . (Lizzie Borden: Inquest)

And later, at trial, Alice Russell testifies about the incident.

“She told me of a man that came to see him, and she heard him say---she didn't see him, but heard her father say, "I don't care to let my property for such business." And she said the man answered sneeringly, "I shouldn't think you would care what you let your property for." And she said, "Father was mad and ordered him out of the house." (Alice Russell: Trial, p.377+)

Lizzie also claims a detective was hired to find this man.

"Q. Have you had any efforts made to find him?
A. We have had a detective, that is all I know.” (Lizzie Borden: Inquest)

OK – here’s a long shot -- maybe Detective Hanscom turned up Mary Durfee?

[Yooper]

Hanscom may indeed have turned up Mary Durfee as a witness, it's certainly a possibility. However, if that's true, then I'm amazed that he wasn't able to turn up more than just one witness to Andrew's ability to make enemies, if we accept Andrew as a cutthroat business man. It may have been an isolated incident, an argument necessarily overheard by someone, as would any other such incidents need be, so perhaps limitations exist. I can't quite see anyone who had threatened Andrew in an argument coming forward with the information, so a third party is necessary.

[augusta]

This comes from "Yesterday in Fall River" by Hoffman, pages 116,117:

"Durfee, Mary A. (1856 - 1924)
Defense witness Mary A. Durfee testified at the trial that she saw a man in an angry argument with Andrew Borden approximately eight months before he and Abby were killed. She did not recognize the man or know the subject of the argument.

"Mrs. Durfee stated on the witness stand that in November 1891, while her late sister was still alive, she saw a stranger talking loudly with Andrew on the front steps of 92 Second Street. Durfee was on her way to get some medicine for her sister, who died before Thanksgiving 1892. She remembered that the strange man exclaimed, "You have cheated me and I'll fix you for it." Judge Albert C. Mason, speaking for the court, ruled that the incident occurred too long before the crime and did not allow Durfee to describe the exchange before the jury.

"Mary A. Durfee was born in Newport, Rhode Island, to George and Elizabeth Bentley. She married Joseph Franklin Durfee of Fall River, a clerk for a local provisions dealer in 1876. She lived at 124 Second Street and died in Fall River."

Hoffman wrote a reference book on the Borden case that was needed. Unfortunately I wonder how much study he did on the case, as his text was not always correct. Mrs. Durfee's sister died on October 27 - not in November of 1891.

This testimony of hers saying she saw the angry man after her sister died, and she said she saw him before her sister died - perhaps it was a slip of the tongue. She was not allowed to finish her sentence about the day she went to get medicine. Had she been allowed to give her testimony completely, maybe we would understand it all.

I guess legally it was right to exclude her testimony because it was so far removed from the murders, but personally I wish she could have finished it.