“I may perhaps illustrate this distinction in the course of my remarks. But, speaking comprehensively, I may now say to you that it will be your duty, in considering and deciding the matters of fact necessary to rendering your verdict, not to allow your judgment to be affected by what you may suppose or believe to be the opinion of the Court upon such matters of fact.
“The defendant is being tried before you on a written accusation, termed an indictment, which contains two charges or counts; one count by the use of the usual legal language in substance charges her with the murder of Andrew J. Borden and the other count charges her with the murder of Abby D. Borden in Fall River in this county on August fourth, 1892.
“The Government claims that the killing of Mr. and Mrs. Borden, by whomsoever done, was done with premeditated, deliberate malice aforethought within the meaning of the statute, and it was murder in the first degree. The statute nowhere defines murder itself, and for such definition we must resort to the common law, and according to that law ‘murder is the unlawful killing of a human being with malice aforethought’.
“The second main proposition in the case is that the killing of Mr. and Mrs. Borden was done by the defendant. In considering the evidence with regard to this issue, you will need to have certain legal principles in mind and to use them as guides. One such principle is the presumption of law that the defendant is innocent. This presumption begins with her at the outset of the trial, and continues with her through all its stages until you are compelled by the evidence to divest her of it.
“It is competent for the Government to show that the defendant had motives to commit the crimes with which she is charged, and evidence has been introduced from which you are asked to find that she had unpleasant relations with her stepmother, the deceased, and also that her father, Andrew Jackson Borden, left an estate of the value of from $250,000 to $300,000, and that so far as is known to the defendant, he died without having made a will. If his wife died before him, it is not disputed that he left the defendant and her sister as his only heirs.
“It appears that Mr. Borden was sixty-nine years old, and Mrs. Borden more than sixty years of age at the time of their deaths. Taking the facts now, as you find them to be established by the evidence, and taking the defendant as you find her to be, and judging according to general experience and observation, was the defendant under a real and actually operating motive to kill her father and his wife?
“Imputing a motive to defendant does not prove that she had it. I understand the counsel for the Government to claim that defendant had toward her stepmother a strong feeling of ill will, nearly if not quite amounting to hatred. And Mrs. Gifford’s testimony as to a conversation with defendant in the early spring of 1892 is relied upon largely as a basis for that claim, supplemented by whatever evidence there is as to defendant’s conduct toward her stepmother.
“But take Mrs. Gifford’s just as she gave it, and consider whether or not it will fairly amount to the significance attached to it, remembering that it is the language of a young woman and not of a philosopher or a jurist. What you wish, of course, is a true conception — a true conception of the state of the mind of the defendant toward her stepmother, not years ago, but later and nearer the time of the homicides. And to get such a true conception, you must not separate Mrs. Gifford’s testimony from all the rest but consider also the evidence as to how they lived in the family.
“Whether, as Mrs. Raymond, I believe, said, they sewed together on each other’s dresses; whether they went to church together, sat together, returned together; in a word, the general tenor of their life. Weigh carefully all the testimony on the subject in connection with the suggestions of counsel, and then judge whether or not there is clearly proved such a permanent state of mind on the part of defendant toward her stepmother as to justify you in drawing against her, upon that ground, inferences unfavorable to her innocence.
“Now, gentlemen, the material charge in the first count of the indictment is that, at Fall River, in this county, the defendant killed Mrs. Borden, by striking, cutting, beating and bruising her on the head with some sharp cutting instrument. In the second count the same charges are made in regard to Mr. Borden. And the government claims that these acts were done with deliberately premeditated malice aforethought, and so were acts of murder in the first degree.
“Now you observe, gentlemen, that the Government submits this case to you upon circumstantial evidence. No witness testifies to seeing the defendant in the act of doing the crime charged, but the Government seeks to establish by proof a body of facts and circumstances from which you are asked to infer or conclude that the defendant killed Mr. and Mrs. Borden. This is a legal and not unusual way of proving a criminal case, and it is clearly competent for a jury to find a person guilty of murder upon circumstantial evidence alone. The principle that underlies circumstantial evidence, we are constantly acting on in our business; namely, the inferring of one fact from other facts proved.
“Sometimes the inference is direct, and almost certain. For instance, the noise of a pistol is heard from a certain room in a hotel. The door is unlocked or otherwise opened. A man is found, just dead, with a bullet hole in his temple. Near him is a revolver with one barrel discharged. In such a case, if no contradictory or controlling facts appeared, we should infer — with a very strong assurance — that the death was caused by the pistol. In other cases the facts from which the conclusion is sought to be drawn are numerous and complicated, and the conclusion not so closely connected with the facts or so easy to draw.
“This is illustrated by the case on trial here. You have got to go through a long and careful investigation to ascertain what facts are proved. Then, after you have determined what specific facts are proved, you have remaining the important duty of deciding whether or not you are justified in drawing, and will draw, from these facts the conclusion of guilt.
“Now let me illustrate. Take an essential fact. All would admit that the necessity of establishing the presence of the defendant in the house, when, for instance, her father was killed, is a necessary fact. The Government could not expect that you would find her guilty of the murder of her father by her own hand unless you are satisfied that she was where he was when he was murdered. And if the evidence left you in reasonable doubt as to that fact — so vital, so absolutely essential — the Government must fail of its case, whatever may be the force and significance of other facts; that is, so far as it is claimed that she did the murder with her own hands.
“Now, take the instance of a helpful fact. The question of the relation of this handleless hatchet to the murder. It may have an important bearing upon the case, upon your judgment of the relations of the defendant to these crimes — whether the crime was done by that particular hatchet or not — but it cannot be said, and is not claimed by the Government that it bears the same essential and necessary relation to the case that the matter of her presence in the house does. It is not claimed by the Government but what that killing might have been done with some other instrument.
“Take another illustration. I understand the Government to claim substantially that the alleged fact that the defendant made a false statement in regard to her stepmother’s having received a note or letter that morning bears an essential relation to the case, bears to it the relation of an essential fact, not merely the relation of a useful fact. Now what are the grounds on which the Government claims that that charge is false, knowingly false?