THE COURT. Mr. Foreman and gentlemen of the jury-you may remain seated-the Commonwealth of Massachusetts called upon you to render a most important service. Although you knew that such service would be arduous, painful and tiresome, yet you 'like the true soldier, responded to that call in the spirit of supreme American loyalty. There is no better word in the English language than "loyalty". For he who is loyal to God, to country, to his state and to his fellowman, represents the highest and noblest type of true American citizenship, than which there is none grander in the entire world. You gentlemen have been put to the real test, and you have proven to the world, and particularly to the people of Norfolk County, that you truly represent such citizenship. For this loyalty, gentlemen, and for this magnificent service that you have rendered to your State and to your fellow men, I desire, however, in behalf of both to extend to each of you their profoundest thanks, gratitude and appreciation.
The issues raised under these indictments are so many and varied, and the law applicable thereto being somewhat difficult of a clear understanding, the charge necessarily will require considerable time. The defendants, Nicola Sacco and Bartolomeo Vanzetti, stand before the bar charged under separate indictments with the murder of Frederic A. Parmenter and Alessandro Berardelli, on the 15th day of April 1920. The agency employed in causing the alleged murder was a pistol.
Under Chapter 6, Section 6, of our Constitution Massachusetts adopted as its governing laws the common law of England. It was a system of laws created by judicial decisions in contra distinction from statutory or legislative enactment. These principles of the common law are in effect today in this Commonwealth in ill respects excepting in those cases where they have been modified, altered or repealed by legislative enactment.
At common law, there was only on.- degree of murder, and upon conviction thereof, the penalty was death, but under the statute of this Commonwealth, the legislature, in a spirit of humanity and a tender regard for human life, divided murder into two degrees, the first and the second. Upon conviction of murder in the first degree the penalty is death, and of murder in the second degree it is confinement in State Prison for life. This statute creating the two different degrees of murder did not in any way change the form of pleading in indictments. This being true, the general allegation of murder in each of the indictments is sufficient to include both degrees of murder. If, then, it shall be found that murder has been committed, its degrees,---its degree, under the statute, shall be determined by the jury.
Murder in the first degree is the gravest offense known to the law. This is so because of the statutory penalty of death. The severity of the penalty is demanded, not in the spirit of revenge or of vengeance, but rather as punishment for the crime committed, and for the following reasons: first, because the life of a human being has been taken, and secondly, because the law, seeks to protect and make safer the lives of all the people of the Commonwealth by deterring and preventing the further commission of similar crimes. This, then, being the law, gentlemen, it is of no consequence whether you and I believe in it or not. It is the law of Massachusetts and has been for many generations past, and being such, it becomes your sacred and solemn duty, as well as mine, to obey it, and if we do otherwise substitute in place of a government of laws, the arbitrary rule of men and such substitution when carried to excess means the impairment, if not the destruction, of the American government and its various institutions, and may God forbid that the pure waters of such a Government, the grandest and noblest in the civilized world, should ever be polluted by streams made foul by the arbitrary rule of men; for, according to the highest and best judgment and wisdom of men from the day that little band of Pilgrims landed at Plymouth Rock until this very hour, human life, liberty and property could only be made safe and secure by a strict and faithful obedience to the laws of the land. Therefore, gentlemen, you must fully realize that into your sacred keeping have been committed the greatest responsibilities, responsibilities that affect the rights of both parties, the Commonwealth on the one hand and these defendants on the other.
And why are those responsibilities so grave and important? Because the life of each defendant is in jeopardy, and to them nothing in the world can be dearer or more precious. They, therefore, are entitled to and should receive, as a matter of justice and of right, your most earnest, painstaking and conscientious consideration of all the evidence in these cases that may be related to or connected with in any way whatsoever every issue herein involved. Our love for justice and our profound desire to see truth established in these investigations, is well as all human investigations, demand it for each of them. I, too, bespeak it for them.
On the other hand, gentlemen, as important is these issues are to the defendants, they are equally as important to the Commonwealth, for the lives of Frederick A. Parmenter and Alessandro Berardelli have been taken and their lives were as dear and precious to them as are the lives of these defendants, for, it must be remembered that no person, excepting in self-defense, by judicial decree for the protection of the people of the Commonwealth, or by an army in times of war, has a right to take human life, and that no person has a right to say to his fellow-man, "so long shall you live and no longer." For that right rests with God above and with no human power on earth.
In addition to what I have said in regard to the interest of the Commonwealth in these prosecutions and in every prosecution, let me say that the prevalence of crime affects the good name of every civilized community. This is so because crime itself is an assault upon the rights of the individual, as well as society itself. This being true, crime committed, crimes committed, affect the safety of human lives, the sanctity of homes and the security of private and public lives.
So you must see, gentlemen, that because these issues are so tremendously important that it becomes our most sacred duty to stand between these parties with unbending impartiality and unflinching courage, guarding the rights of each with the utmost care and caution, in order that truth may be established and thereby justice attained. Let the star of sound judgment and profound wisdom guide your footsteps into that beautiful relm where conscience, obedience to law and to God, reigneth supreme.
Let me repeat to you what I said to another jury in a similar case: Let your eyes be blinded to every ray of sympathy or prejudice but let them ever be willing to receive the beautiful sunshine of truth, of reason and sound judgment, and let your ears be deaf to every sound of public opinion or public clamor, if there be any, in favor or against these defendants. Let them always be listening for the sweet voices of conscience and of sacred and solemn duty efficiently and fearlessly performed. The law grants to every, person the same rights and privileges, and imposes upon each corresponding duties, obligations and responsibilities; for whoever is willing to accept the blessings of government. should be perfectly willing to serve with fidelity that same government. In the administration of our laws, criminal or civil, there is and should be no distinction between parties. For if it ever should so appear in some cases, this, gentlemen, is not the fault of the integrity of the law but rather due to the weakness of human beings in the administration of the law, all classes of society, the poor and the rich, the learned and the ignorant, the most powerful citizen as well as the most humble, the believer as well as the unbeliever, the radical as well as the conservative, the foreign-born as well as the native-born, are entitled to and should receive in all trials under our laws the same rights, privileges and consideration as the logic of law, reason, sound judgment, justice and common sense demand. I therefore beseech you not to , allow the fact that the defendants are Italians to influence of prejudice you in the least degree. They are entitled, under the law, to the same rights and consideration as though their ancestors came over in the Mayflower.
Guilt or innocence, gentlemen, of crime, do not depend upon the place of one's birth; the proportion of his wealth, his station in life, social or political, or his views on public questions prevent an honest judgment and impartial administration and enforcement of the law, for when the time comes that these conditions exist to an extent that men, because of these conditions, cannot be indicted, tried, acquitted according to the laws of the commonwealth in a court of justice, the doors to our court house; should then be closed and we should announce to the world -the impotency of our courts and the utter failure of constitutional or organized government.
Having cleared away any mist of sympathy or prejudice from your minds, if, perchance, there might happen to be any, and having substituted, I trust, in its place a purer atmosphere of unyielding impartiality and absolute fairness, let us take up some of the rights granted by law to these defendants and, in fact, to every defendant. They have a right to expect and demand of you that every right granted to them by law shall be freely given. These rights are both constitutional and statutory. They are not rights to be granted or withheld according to even the discretion of jurors. They are imperatively granted and should be as imperatively followed by you as though given by divine decree.
Now, what are some of these rights? The law says that no inference of guilt shall be drawn from the fact that indictments have been found against these defendants. The Constitution of the United States and of this Commonwealth require an indictment by a Grand Jury before there can be a trial upon the merits; for until an indictment shall have been found, no person can ever be put to the expense, embarrassment or humiliation of a trial, for a right granted. by law should never be the cause of an inference of bias or prejudice whatsoever. The law, in its spirit of justice and fairness, throws this cloak of protection around these defendants and, in fact, around every defendant in all criminal cases, the humblest citizen as well as the most powerful. The Grand Jury is an accusing body, and on this account hears only the evidence in support of the charge and not in exculpation of the accused, and the hearing, moreover, is ex-parte. The defendant is never present, neither are his witnesses.
Again, an indictment is a condition precedent required by law to be found by a Grand Jury before a hearing can be ever held upon the merits of the indictment. You have been summoned here, gentlemen, to hear these charges upon their merits in accordance with law. You must, therefore, see how unjust and unfair it would be, to allow any inference of guilt or prejudice in any manner whatsoever to be drawn from the fact that these indictments have been found by the Grand Jury against these defendants. The law permits no inference of this nature. Neither should you.
Again, please notice the tender regard the law has for all unfortunate defendants. It always presumes good and -never evil; for it hath declared every defendant in all criminal cases is presumed to be innocent until he shall have been proven guilty. This presumption must always prevail, in the absence of proof. The defendants in these cases came into court to hear and to answer these indictments, and until the indictments shall have been supported by evidence lending to prove them guilty, they stand as innocent persons before the law.
The defendants are entitled to the benefit of this presumption at the opening of their cases, and it remains with them until you shall have reached your verdict. The presumption must prevail unless and until it has been controlled and rebutted by evidence of a sufficient degree of proof that satisfies the requirements of the law, and that requirement demands proof beyond reasonable doubt.
What is reasonable doubt? In the prosecution of criminal cases, the law requires that the burden of proof rests upon the Commonwealth to ·establish beyond reasonable doubt the guilt of every defendant. I must, therefore, ask you to give me your most careful attention while I explain to you the legal meaning of this term. Reasonable doubt has the same meaning in the trial of all criminal cases, whether it is one of simple assault or murder in the first degree. It is the same law that has governed the trial of criminal cases for centuries. Every defendant, and the defendants at the bar, have an absolute right to hold the Commonwealth to that strictness of proof that the law requires.
The Commonwealth must prove beyond reasonable doubt every fact or element necessary to prove the crime of murder. If the Commonwealth should fail to establish every fact that is essential to prove the crime of murder, then the crime alleged has not been established beyond reasonable doubt. If, again, you should find some fact to be true that is essential to establish the crime of murder and which fact is consistent with innocence and inconsistent with guilt, then the Commonwealth has failed to prove the crime murder as alleged.
At the very beginning of this subject, you must thoroughly understand that it means the doubt of a reasonable man who is earnestly seeking the truth. It does not mean the doubt of a man who is earnestly looking for doubts. It means such a doubt that exists in the mind of a juror after there has been, on his part, an honest and conscientious effort to ascertain the truth. It does not mean a doubt beyond all peradventure. Neither does it mean beyond all imaginary or possible doubt, because everything relating to human affairs and human evidence is open to some possible or imaginary doubt.
The law does not require proof so positive, so unerring and convincing that amounts to a mathematical or absolute certainty. You might obtain proof of that character in the exact sciences, but not in human investigations. For, you must remember, gentlemen, that we are involved in human investigations, in which all the evidence must be considered and weighed and determined by jurors who are human beings. You must, then, see that we are not dealing with absolute certainties, because God has never yet endowed man with sufficient power of intelligence and reason to reduce the results of human investigations to absolute certainty. Crime could be proven with difficulty if the law required proof to this extent, and practically never in those cases that are dependent for their proof upon circumstantial evidence.
If, then, reasonable doubt does not require absolute proof, certainty of proof, it becomes my duty to explain to you as intelligently as I can what degree of certainty it requires. Inasmuch as I have told you we are dealing with human investigation, you must, then, see that it requires reasonable and moral certainty as distinguished from absolute certainty. Therefore, whenever the proof satisfies a jury to a reasonable and moral certainty, then proof beyond a reasonable doubt has been established. This is so because proof to a moral and reasonable certainty is, as a matter of law, proof beyond reasonable doubt.
Now, perhaps I may be able to further assist you in understanding the meaning of reasonable and moral certainty, because, as I have told you, proof to a reasonable and moral certainty is, as matter of law, proof beyond reasonable doubt. Let me partially answer this question by asking one: What certainty of proof, as careful and cautious men, would you require before completing the -most important affairs of your own life? You could not obtain absolute certainty because there is always some possible uncertainty in human transactions, even among such transactions that require and receive most thorough, painstaking and conscientious investigation, but you could, however, satisfy your minds that such transactions were safe and wise to a reasonable and moral certainty before acting upon them.
If then you would be willing to act upon such a degree of proof in the most important affairs of your own life, then that is proof to a reasonable and moral certainty. If, therefore, having determined the degree of proof that exists in these cases on trial, would you be willing upon such degree of proof to act upon the most important affairs of your life? If you would, then proof has been established to a reasonable and moral certainty, and therefore you should find, as a matter of law, proof beyond reasonable doubt. If you would not be willing, to so act, then proof beyond reasonable doubt has not been established and, therefore, you should return a verdict of not guilty.
Let us next take up the question of joint principals and their liability. Let us take up the law, that is applicable to alleged acts of the defendants, with reference to their joint liability as principals in the commission of the alleged murder. The commonwealth claims that the two defendants, with others, by concert of action and purpose conspired together to take the lives of Frederick A. Parmenter and Alessandro Berardelli.
Now, what is conspiracy? It is an agreement or combination between two or more person-, by some concerted act to accomplish some unlawful or criminal purpose. Was there such a combination, express or implied, between these defendants and others by concerted action to accomplish some criminal purpose? What was the criminal purpose that the persons who took the lives of the deceased sought to accomplish? Was it not robbery, an in order to accomplish such ultimate criminal purpose of robbery, was it not reasonably understood by the parties that it would be reasonably necessary to either put the lives of the deceased in jeopardy or else to actually take lives? What is robbery? It is larceny from the person, accompanied by violence or putting in fear. If, therefore, two or more persons conspire to rob, they necessarily assent to the use of some violence or putting in fear, in order to accomplish the purposes of robbery. This is so because there must be violence used or putting in fear in order to constitute robbery.
It is claimed by the Commonwealth, and not denied by the defendants, that robbery was the ultimate purpose, was the ultimate object to be accomplished by those who committed the robbery. Now, this being true, what kind of violence was it understood by the parties should be used in order to consummate the robbery, and what kind of violence did they, in fact, use? Did not the parties necessarily and reasonably understand that firearms would be used in order to accomplish the robbery? Could it have been accomplished without putting human life in jeopardy or by the actual taking of human life with the use of firearms? What was done at the time of the alleged killing wherein Parmenter and Berardelli were shot down in cold blood, without opposition or resistance on their part?
If, then, robbery was the object of their agreement and it was reasonably understood by the parties that human life would be taken or put in jeopardy, then all persons present aiding, assisting and cooperating with each other in the execution of the robbery are joint principals. Therefore, a conspiracy being a joint offense or a copartnership, as it were, each of the conspirators acting through all the others and all the others acting through each, and this being true, the degree of guilt is equal, the guilt is borne equally, and each conspirator becomes liable for all the guilt. This being so, the pistol fired by the hand of one conspirator was a pistol fired by the hand of each and every conspirator who was present aiding and assisting in the accomplishment of the alleged robbery. In other words, each conspirator is legally bound by the result of the shooting by one or more conspirators to the same effect and in the same manner as though each conspirator fired the shot himself which, in fact caused death.
Let us now consider the substantive law of murder. I have already told you that at common law there was only one degree of Murder. By our statutes there are two degrees of murder, the first and the second. I shall now read to you this statute and I trust you will give me the strictest attention while I am so reading. I will read from General Laws, Chapter 65, Section 1.
"Murder committed with deliberately premeditated malice aforethought or with extreme atrocity or cruelty or in the commission or attempted commission of a crime punishable with death or imprisonment for life is murder in the first degree. Murder which does not appear in the first degree is murder in the second degree. The degree of murder shall be determined by the jury."
You see, under this statute murder in the first degree may be committed in one of three different ways. First, with deliberately premeditated malice aforethought; or, second, with extreme atrocity or cruelty; or third, in the commission or attempted commission of a crime punishable with death or imprisonment for life.
The Commonwealth relies only upon the first and third ways, namely, murder committed with deliberately premeditated malice aforethought, and third, in the commission or attempted commission of a crime punishable with death or imprisonment for life. The second form, which refers to murder committed with extreme atrocity or cruelty, you will entirely disregard and dismiss from further consideration.
Inasmuch as the statute deals with two degrees of murder and inasmuch as you must determine to which degree the alleged murder belongs, if any, you must clearly understand their difference in order that you may apply the law to the facts. Briefly stated, murder in the first degree, under the statute, is murder committed with deliberately premeditated malice aforethought. Murder in the second degree is murder committed with malice aforethought and without deliberate premeditation.
First let us take up murder committed with deliberately premeditated malice aforethought. Let us now see what these different words and phrases mean. "Murder," is the unlawful taking of a life of a human being with malice aforethought. You see, this is a definition of murder itself and nothing more. At common law there was only one degree of murder, so you must see that murder at common law is exactly the same as murder in the second degree, under the statute. This is so because under the statute murder in the second degree does not include the words "deliberate premeditation." The statute, therefore, contemplates a distinction between murder committed with deliberately premeditated malice aforethought and murder committed with malice aforethought but without deliberate premeditation. You must therefore see that each degree has, in common with the other, the essential element of malice aforethought, and malice aforethought must always be proved before there can be conviction of either degree of murder.
Now, what is the meaning of the word "malice"? "Malice" means something more than hatred, malevolence or a wicked or cruel heart against a certain individual or class of individuals. It means more particularly the state of one's mind that prompts one to commit a violation of the law to the injury of another. If a person intentionally injures another without justification or excuse, such intention, in the eyes of the law, is malice. The question of malice, therefore, you must determine, is: Did the defendants at the time of the alleged homicide intend, without justification or excuse, to take the life of Frederick A. Parmenter and Alessandro Berardelli or to put their lives in jeopardy? If they did, the law says that such intention is malice. Malice is sometimes defined as express by evidence of express or implied. Express malice is generally proven by evidence of express declaration tending to prove hatred, hostility or ill-will, and implied malice is which the law implies from proof of circumstances connected with the homicide, and in many cases, from the homicide itself.
In the cases on trial there is no evidence of express malice by the defendants, but the Commonwealth relies upon malice implied from circumstances and the homicide itself. The law says that every person intends the natural, reasonable and probable consequences of his own acts. To apply this principal of law to the facts in these cases, you should first determine if the defendants caused by the use of a pistol the death of the deceased. The Commonwealth claims they did. Did the defendants know at the time of the shooting, if they did the shooting, that a pistol was a deadly weapon? From their knowledge of the use of a pistol, if one was used by them or either of them, did they expect naturally death to follow or that human life would be put in jeopardy by its use? If they did, that is, as a matter of law, malice.
It makes very little difference in, whether you call malice express or implied. The important question for your determination is whether or not malice accompanied the alleged homicide. Malice is a fact that must be proven beyond a reasonable doubt, the same as any other fact in the case. It must be established by evidence. It is never presumed without evidence.
So you see, gentlemen, that the Commonwealth must satisfy you beyond reasonable doubt, that the defendants, if they were present at the time of the alleged homicide, intended by the use of the pistol, if such pistol was used by them or either of them, to take the lives of the deceased. If the Commonwealth has so satisfied you, then malice has been established as a matter of law, for the intention to take a human life or to inflict grievous bodily injuries and the taking of it, without justification or excuse, is malice.
Our next inquiry should relate to the meaning of the word "aforethought", as used in connection with the word "malice", or "malice aforethought". "Aforethought" means to think before. To think before what? To think before the alleged shot or shots were fired. In these cases the thought should precede the alleged shooting that caused the death of the deceased. The thought or intention to kill, as a matter of law, must precede the killing. There must be, however, gentlemen, some intervals of time between the intention to kill or the act of killing, but, as a matter of law it is sufficient if the intention preceded the actual shooting even though the interval consumed only seconds.
If, then, you should find that the Commonwealth has satisfied you beyond reasonable doubt that the defendants at the time of the alleged shooting, intended to kill the deceased or to do them serious bodily injury, and if such intention preceded the shooting, no matter how brief the time, then you should find malice aforethought as a matter of law.
Again, if a person even intends to put human life in jeopardy or to inflict grievous bodily injuries upon another and death results therefore, although he did not intend, in fact, to kill, yet he is guilty of murder, provided the intention to put human life in jeopardy or to inflict grievous bodily injuries preceded the act that caused death. Therefore, an intention to put human life in jeopardy or to inflict grievous bodily injuries which caused death stands in the eyes of the law exactly in the same relationship to the crime of as an intention to kill.
If, on the other hand you do not find malice aforethought from all the other evidence in the case, you cannot find the defendants guilty of murder in either degree, but if you do find malice aforethought then it becomes your duty, however painful it may be, to determine as a fact whether the malice aforethought was preceded by deliberate premeditation, for, if it was so preceded that is murder in the first degree.
The Commonwealth, in all these cases, has a right to demand of you the determination of these questions if you find beyond reasonable doubt that murder, has been committed, because the law provides that if murder is found to have been committed the jury must determine what degree of murder has been committed.
I have already explained to you the meaning of "malice aforethought," and when found to exist the crime of murder in the second degree has been committed. I have also explained to you that malice aforethought, preceded by deliberate premeditation, constitutes murder in the first degree. Now, what is the meaning of "deliberate premeditation" as used in connection with "malice aforethought" in homicide cases? Now, you must remember what I already told you, that malice aforethought means an intention to kill or to put human life in jeopardy if such intention precedes the actual killing, no matter how brief the interval of time may be between the formation of the intention to kill or the intention to put human life in jeopardy and the actual killing.
Although both words "deliberate premeditation" might seem to be used in the same sense in connection with "malice aforethought", yet they have somewhat different meanings. Now, "premeditation" means to meditate or to consider beforehand. That is, there must have been a meditation and a consideration before the intention to kill was formed, and if a person considers and thinks over the doing of an act and then intentionally does it, he has premeditated the act. Now, "deliberation" means reflection. It means the weighing of the consequences of the act that one intends to commit and which he does in fact commit. "Deliberation" necessarily implies the want or absence of passion. It also negatives the doing of act under sudden impulse. "Deliberate premeditation", therefore, means the calm, voluntary and reflective exercise by the mind of the choice of killing rather than the choice of not killing after reflection, deliberation and a weighing of the consequences of the act of killing.
In other words, "deliberate premeditation" means such a reflection and consideration of the act of killing that results in a settled and determined purpose or design to take the life of a human being. Expressed somewhat differently, the intention to kill must be a deliberately premeditated intention to kill. That is, the intention to kill must be the result of a calm, fixed and determined purpose and design to take the life of a human being. If, therefore, briefly expressed, the intention to kill preceded the killing and if it was a deliberately premeditated intention to kill, then the crime of murder in the first degree has been committed.
Let me recapitulate,---if the defendants, before the fatal shots were fired, if they were fired by them, by either of them or by one of their conspirators, intended to kill the deceased or to do either of them great bodily injury, and such intention was preceded by and was the result of a premeditated design and ,a fixed and a wicked purpose to kill in order to accomplish the robbery, then your verdict should be guilty of murder, in the first degree.
Let me now consider with the question of motive. It is always a very important question in the determination of questions this nature. In the solution of problems, in the prosecution of criminal cases, the presence or absence of motive may be a fact of great importance. In some cases it may be the decisive fact. Motive alone, however, is insufficient to establish guilt. Therefore, the presence of motive, when established, is a fact that tends to prove guilt, while the absence of motive when established is a fact that tends to prove innocence.
Now, motive many times may be the key that unlocks the safe of the human brain in order to ascertain one's mental state or purpose, for proof of murder depends upon mental state or condition at the time of the commission of the alleged homicide. This being true, you must not be confused between motive and intent; for in the prosecution of criminal cases under the common law, apart from statutes, ordinarily the indictment must allege, and the Commonwealth must prove, a guilty intent as well as the commission of the act. In others words, there must be established a criminal intent as well as a criminal act, for, as a general principle, a crime has not been committed if the mind of the person committing the act was innocent. Therefore, you see that the intent is so connected with the, crime itself that it forms an essential part of it.
Now, motive does not constitute any part of the proof of the crime itself, for a person may be convicted of the commission of a crime without any evidence whatsoever that tends to prove motive. Now, motive from its derivation means "to move". It is the moving power that impels the mind to action. It therefore precedes intention. If motive precedes intention, then it is the moving spirit that prompts the mind to direct the commission of the criminal act. It is, so to speak, the drive wheel that starts the mental machinery into action. For, you must remember, it is the mind that directs and controls all movements and acts of the body and its members. They respond with absolute obedience to all commands of the mind. This being true, then, motive preceding intention becomes an important fact is tending to prove, not only a guilty intent, but also deliberation and premeditation. And in these cases on trial, the Commonwealth claims that robbery of the paymaster was the motive that preceded the intention to kill, and being such it was the impelling power that caused the mind to form the intention to kill. If this is true, then the Commonwealth claims that robbery having been accomplished in the manner in which it was accomplished, there must have been not only a precedent intention to kill but also that such intention must have been preceded by deliberate premeditation.
In other words, the accomplishment of the robbery itself as it was accomplished necessarily proved that there must have been, on the part of those who accomplished it, a calm, deliberate and determined intention to kill or to do grievous bodily injury in order to carry out the wicked purpose or design of possessing themselves of the two boxes of money. Therefore, gentlemen, you must see that in these cases motive becomes a fact of great importance as bearing not only upon the question of intent, but also deliberate premeditation.
Now, we will take up the second form by which murder in the first degree may be committed under the statute. Under the statute from which I read you will recall that I said murder in the first degree might be committed if it was committed in the commission or attempted commission of a crime punishable by imprisonment for life. If Frederick A. Parmenter or Alessandro Berardelli or either of them had recovered from the effects of the pistol wounds which were inflicted, could the person or persons who committed the assault upon them have been convicted of any crime punishable by imprisonment for life?
In my opinion, that could be done provided certain facts could be established beyond reasonable doubt. Before considering the facts to be established, let me read to you from General Laws, Chapter 265, Section 17:
"Whoever, being armed with a dangerous weapon, assaults, robs, steals and takes from a person money or other property which may be the subject of larceny, with intent, if resisted, to kill or maim the person robbed, or, being so armed, wounds or strikes the person robbed, shall be punished by confinement in the State Prison for life."
So you see, if a person, being armed with a dangerous weapon-a 32-calibre pistol is a dangerous weapon--wounds or strikes with such weapon the person whom he robs of money or personal property, such person upon conviction may be sent to State Prison for life. Therefore, if the deceased had survived the wounds, and if the person or persons who inflicted such wounds were armed with a pistol of 32-calibre, and if the sum of $15,776 was taken from the persons of the deceased or either of them by use of said pistol, then such person or persons convicted of such crime could be sent to State Prison for life.
Secondly, the Murder having been committed by a person who engaged in the commissioner of the crime punishable with imprisonment in the State Prison for life, such person is guilty of murder in the first degree and, this is true without any proof of the deliberate premeditation.
In conclusion, therefore, upon the subject of murder in the first degree, I say to you that if you are satisfied beyond reasonable doubt that murder has been committed by these defendants either, first, by reason of their having acted with deliberately premeditated malice aforethought or, without such deliberate premeditation, they committed murder in the commission or attempted commission of a crime punishable with imprisonment in State Prison for life, then such defendants who committed such murder are guilty of murder in the first degree.
On the other hand, if you are not satisfied that they committed either form of murder, then you should return a verdict of not guilty.
I have given you the law of murder and its different degrees at considerable length because I felt it was my duty to explain to you the law that governs the different essential elements involved in the crime of murder. Perhaps it was unnecessary, because if I have followed counsel correctly the real issue that you must determine is a very narrow one. It is one of identity. Although the evidence has been very voluminous, yet a jury could have, really have an issue more narrow for their determination than the one involved in these cases.
Now, what is the issue? It is simply this: has the Commonwealth satisfied you beyond reasonable doubt that these persons are the persons who committed the alleged murder? That murder in the first degree has been committed there seems to be little or no dispute according to the arguments of counsel, but there is a most strenuous contest or dispute as to the identity of the murderers.
The Commonwealth claims that these defendants were two of a party of five who killed the deceased. The defendants deny it. What is the fact? As I have told you, the Commonwealth must satisfy you of that fact beyond reasonable doubt. The defendants are under no obligation to satisfy you who did commit the murders, but the Commonwealth must satisfy you beyond reasonable doubt that these defendants did. If the Commonwealth has failed to so satisfy you, that is the end of these cases and you will return verdicts of not guilty. This is so because the identity of the defendants is one of the essential facts to be established by the Commonwealth. On the other hand, if the Commonwealth has so satisfied you, you will return a verdict of guilty against both defendants or either of them that you so find to be guilty.
Identity, gentlemen, may be established by direct or by circumstantial evidence or by both. Direct evidence is evidence of personal observation by the witness of the criminal act itself. Circumstantial evidence depends upon the proof of circumstances or facts from which the ultimate fact or the crime itself is inferred. It has been said that circumstantial evidence alone should never be sufficient to establish the guilt of any defendant in any criminal case. Such a statement, gentlemen, is the result of ignorance rather than sound reason or mature judgment, for it has been truly said that crime would go unpunished to a very large extent without the aid of circumstantial evidence. Both kinds of testimony, gentlemen, may be at times irresistibly strong and at other times irresistibly weak. Therefore, each case must stand itself. It is not the name, gentlemen, that you give to the evidence which should ,govern your conclusion, but rather it is the quality, the character and the probative effect of such evidence independent of the name ascribed to it. Direct evidence from witnesses who not are not believed is exceedingly weak. Evidence of facts and circumstances from witnesses -,who are not believed is exceedingly weak. Direct evidence from witnesses who are believed is irresistibly strong: and evidence of facts and circumstances from witnesses who are believed when such evidence forces the mind, as a reasonable mind, to the conclusion of guilt, is irresistibly strong.
Therefore in the eyes of the there is no important distinction between circumstantial evidence and any other kind of evidence. It is the degree of proof that the evidence establishes; for, no matter what the evidence may be, it is necessary that that evidence should satisfy you of the guilt of these defendants so that you cannot come to any other reasonable conclusion than that they are guilty. If such evidence, on the other hand, does not so satisfy you it is of no consequence, gentlemen, then whether it is evidence of circumstances or evidence of eye witnesses, so that you must see, gentlemen, the question is whether or not from all the evidence in these cases, no matter want you may call the name of the evidence, the Commonwealth has satisfied you to a reasonable and moral certainty that these defendants committed the alleged murder. If it has, the defendants are guilty. If is has not satisfied you, then they are not guilty.
As a general rule, the ordinary witness cannot testify to his opinions on questions in issue. He is restricted to evidence that tends to prove facts. To that rule of law there lie certain exceptions. One of them includes identification. This being true, the ordinary witness can express his opinion as to the identity of persons iii(I things provided such opinion is based upon personal observation. Therefore, identify becomes an essential fact in these cases that must be proven by evidence, and any evidence that tends to establish such fact is admissible. The law does not require that evidence shall be positive or certain in order to be competent. Over-positive ness in identification might under some circumstances and conditions be evidence of weakness in the testimony, rather than strength. Certainty varies, gentlemen, in degrees. It ranges from the most positive to the slightest degree. Therefore, any evidence that comes within those degrees is competent for the consideration of the jury. Expressed somewhat differently, any evidence that tends in any degree, however slight, to prove a likeness or similarity between the defendants and the assailants is admissible. The weight or probative effect of such evidence rests exclusively with the jury.
Therefore, it becomes your sole duty to determine this fact of identity, as wll as all other facts involved in these cases, for the Court has absolutely nothing to do with the facts. The court determines the law, and has no opinion on the facts. The jury must determine the facts without suggestion or intimation from the court either by speech, gesture, tone of voice or in any manner whatsoever. The law, therefore, places this important responsibility upon you and you must assume it as men of sound judgment, common sense and clear conscience, without fear, sympathy or prejudice.
Upon the question of identity, the Commonwealth relies upon two kinds of evidence, direct and circumstantial. The direct evidence came from eye witnesses who have testified that they saw the alleged shooting, and from others who claim that they saw one of both of the defendants while escaping in the so-called death automobile. Evidence has been offered by both sides. On the one side it is affirmative and the other it is negative.
Now, how are you going to determine wherein lies the truth? You must use your best judgment and common sense, your knowledge of human beings and human conduct, your ability to dissect and analyze evidence so that you can separate truth from falsehood and actualities from things imaginary. You should carry also in your minds the fairness and impartiality of each witnesses upon both sides, their desire and willingness to tell the truth, their interest, if any, in these cases, their power of vision, their freedom from nervous strain or excitement, their bias or prejudice, their opportunities for observation, the duration of such observation, their reasons for making such observations, and their intellectual qualifications which would enable them to actually and reliably reproduce for you consideration what, in fact and in truth, they did or they did not see.
Therefore, you might naturally say the most important thighs that would assist you in determining this question of personal identity by direct evidence would be, first, the intelligence of the witnesses who made the observation, their opportunity for observations, their reasons for making such observations, the duration of such observation and the mental or nervous condition of the witness at the time of making such observations, for you must remember that the witnesses have attempted to reproduce before you what in fact they saw at the time of and immediately following the alleged homicide.
Therefore, gentlemen, you might say, if you wished, that the most important qualification of the witness that would enable him to present to you a true reproduction of his observation would depend upon his intellectual keenness and the strength of his mentality. For the photographer, in order to take a true likeness of an individual must have proper physical equipment. So, too, a witness must have a proper intellectual equipment in order to take a true mental picture of an individual. Of course, coupled with this equipment, either physical or intellectual, the person taking the picture should have a reasonable opportunity so to do. So you see, gentlemen, the question is whether or not true mental photographs or pictures of these defendants, or either of them, were taken by the witnesses or any of them at the time of the alleged homicide immediately following the same so that they have reproduced correctly such photographs or pictures in your presence and for your consideration.
I have charged you at considerable length upon this fact of personal identification of the defendants by direct evidence. You must bear in mind, however, that there is other evidence that bears upon this question. The Commonwealth and the defendants, both, make this claim. This is so because personal identification by witnesses is only one link in the chain of evidence to which you must give full consideration. One piece of testimony standing alone by itself may be weak or strong. Another piece of testimony separated from all the rest may be weak or strong, but you must consider the evidence in its entirety, for the real test is this: Whether or not you are satisfied to a reasonable and moral certainty from all the evidence introduced on both sides that the defendants, or either of them, were at South Braintree on the day in question. This evidence applies not only to the affirmative testimony of the Commonwealth which tended to prove the presence of the defendants at South Braintree at the time when said homicides were committed, but also to the negative testimony introduced by the defendants which tended to prove their absence.
For instance, the defendants claim you must consider with care the evidence tending to prove an alibi, for the reason that, if they were elsewhere when the alleged homicides were committed, that is evidence which tends to corroborate the witnesses of the defendants to the effect that they were neither at the place when the alleged homicides were committed, nor were they in the bandit car. In regard to the evidence of an alibi, I shall consider that matter more in detail later.
Now, the Commonwealth claims that there are several distinct pieces of testimony that must be considered upon the question of personal identification. Let us see what they are. First, that the fatal Winchester bullet, marked Exhibit 3, which killed Berardelli, was fired through the barrel of the Colt automatic pistol found upon the defendant Sacco at the time of his arrest. If that is true, that is evidence tending to corroborate the testimony of the witnesses of the Commonwealth that the defendant Sacco was at South Braintree on the 15th day of April, 1920, and it was his pistol that fired the bullet that caused the death of Berardelli. To this effect the Commonwealth introduced the testimony of two witnesses, Messrs. Proctor and Van Amburg. And on the other hand, the defendants offered testimony of two experts, Messrs. Burns and Fitzgerald, to the effect that the Sacco pistol did not fire the bullet that caused the death of Berardelli.
Now, gentlemen, what is the fact, for you must determine this question of fact, and when determined it may be of assistance to you in determining the ultimate fact. Of course, this evidence cannot be considered by you in any manner whatsoever against the defendant Vanzetti unless you find as a fact that he, too, was present aiding and assisting Sacco and the other conspirators in the shooting and killing of Berardelli. Although I have referred only to the killing of Berardelli, you must bear in mind there is no claim but that the same persons who are responsible for the death of Berardelli are equally responsible for the death of Parmenter. This is so, because, as I have told you, both of the deceased were killed at practically the same time by the same joint principals or conspirators and were actuated by the same motives and purposes.
Second, that the deceased Berardelli had a revolver, that immediately following his death none was found in his clothing, that Berardelli about three weeks before his death, in company with his wife, left said revolver with the Iver Johnson Company of Boston for the purpose of having a new spring put into it, that according to the foreman of the repair shop of Iver Johnson Company a new spring and hammer were put into an H. & R. revolver that had a repair tag number upon it of 94765, which number was given to the repair job by the person who took the revolver from Berardelli at the time it was left to be repaired; that on the Saturday night previous to the shooting some witness testified that a revolver in the hands of Berardelli,-he saw in the hands of Berardelli, was something similar to the one he had previously seen with Berardelli.'
Now, the Commonwealth claims that if this revolver, found or taken from the defendant Vanzetti, was taken by him it the time of the killing of Berardelli, that is evidence tending to corroborate the witnesses of the Commonwealth that the defendant Vanzetti was in the bandit car and, therefore, was present at the time of the alleged shooting at South Braintree. You must therefore see that the new hammer and spring may become a very important feature in the identity of this revolver.
I have stated to you the claim of the Commonwealth with reference to this Harrington & Richardson revolver. You must remember now, on the other hand, the defendants have offered testimony tending to prove that said revolver never was the property of Berardelli, but having passed through several hands it became the property of the defendant Vanzetti, and that, according to the testimony of the two experts, the said Messrs. Burns and Fitzgerald, no new spring and hammer were put into said revolver by the employees of said Iver Johnson Company.
Here again, gentlemen, is another controverted question of fact which you must determine. What is the truth? For the truth will assist you in arriving at a conclusion. Of course, this evidence is not competent against the defendant Sacco, because there is no suggestion that the Berardelli revolver was used by either of the so-called bandits in causing the death of either Berardelli or Parmenter. Therefore, this evidence must be limited in its probative effect, if it has any, to Vanzetti alone.
Third, that there is evidence tending to prove that a cap was found near the body of Berardelli; that said cap was in general appearance and color like that worn by the defendant Sacco; and that the defendant Sacco was seen going away without any cap upon his head. Now, the Commonwealth claims that if this cap belonged to Sacco it could not have been found near the dead body of Berardelli unless the defendant Sacco lost it at the time of said shooting. If, then, he lost it at that time, you have a right to say that he was then present.
On the other hand, you should remember that the defendant Sacco and his wife both have testified that said cap never belonged to the defendant that he never owned it, and if that is true, it should not be considered by you as evidence against him. Again, gentlemen, you have another controverted question of fact. What is the truth? Having ascertained that, apply it accordingly. Of course, this evidence cannot be considered as competent evidence in any way against the defendant Vanzetti.
There is another piece of testimony to which I specifically call your attention, because the Commonwealth claims that such testimony tends to prove, and in fact proves, a consciousness of guilt on the part of these defendants. You must therefore follow me with great care while I explain to you the legal meaning, of this expression so that you may apply correctly the law to the facts found by you to have been established; for, you must notice that I said, "to established facts." This is so because facts must be established in order to make application of this principle of law. In these cases on trial, if the evidence does not establish facts from which guilt of the crime alleged in these indictments may be inferred, then you will eliminate entirely from your consideration such evidence, because there are no facts proven to which you can apply this law of consciousness of guilt.
The entire record, gentlemen, of every person's life is safely locked up in the vault of the human brain. No human eye has ever scanned a line of that record, and no human intelligence has ever seen that brain in action, and although we know this to be true, yet we also know at the same time that this same brain directs and controls all actions of the human body and its members. Therefore, the mind is the mental pilot in command and the body obeys. The body, without the mind, is like the vessel at sea without its rudder, or the -automobile without its steering wheel and without which both would be helpless and without control.
If, then, the mind directs and controls the movements of the body, and if it is safely protected from human view from without, how, then, can the jury ascertain the real facts and purposes of such mind within? My answer is by a true interpretation of the external bodily signs and manifestations that appear from Without, just as the mind of the deaf and the dumb is interpreted by the movement of the fingertips from without. In other words, speech, physical acts, movements and manifestations of the body and its members translate into human language the thoughts, intentions, knowledge and even the secrets of the mind within. As the speedometer automatically records mile after mile as the automobile proceeds on its journey, so the human brain records every act by the human body and its members pursuant to its direction, whether such act be lawful or unlawful, guilty or innocent.
Therefore, the mind, being conscious of every bodily act theretofore committed, it knows whether or not such act is one of innocence or guilt. If it indicates guilt, that is evidence of consciousness of a guilty act, and evidence of a consciousness of a guilty act is evidence tending to prove commission of such guilty act, and evidence of the commission of a criminal act tends to prove the identify of the author of such criminal act. To be more specific, the real question is, do the actions, conduct and speech of the defendants on the night of May 5, 1920, and at other times, indicate that their minds were then conscious of having committed some crime? If they do, then the probative effect of such consciousness must be determined by the jury.
You must remember, however, gentlemen, what I have already told you, that consciousness of guilt depends upon proof of established facts. Therefore, if the Commonwealth has satisfied you of such established facts from which you find a consciousness of guilt on the part of these defendants, or either of them, then you may consider such facts in connection with all the other facts established, if any, as bearing upon their guilt of the crimes set forth in these indictments, which , allegation is murder.
This being true, if, then, the defendants were only consciously guilty of being slackers, liable to be deported, fearing punishment therefore, and were not consciously guilty of the murder of Berardelli and Parmenter, then there is no consciousness of guilt during the time they were at the Johnson home, because the defendants are solely being tried for the murders of Berardelli and Parmenter, and for nothing else. In addition to what I said as to the consciousness of guilt of these defendants in regard to their conduct and movements while at the Johnson house, it equally applies to all the other evidence of consciousness of guilt in these cases for the same reason that I have given you, namely, that these defendants are being tried for the murders of Berardelli and Parmenter, and for nothing else. For the law requires that there must be a causal connection or some probative relationship between the evidence tending to prove a consciousness of guilt and the crime charged in the indictments.
But the Commonwealth claims that all the evidence of the declarations, conduct and movements of the defendants while at the Johnson house, at subsequent times thereto and on subsequent occasions, tends to prove a consciousness of guilt of the murders of Berardelli and Parmenter. This is on the ground that the evidence is consistent only with the, consciousness of having committed the crime of murder and inconsistent with any other theory. While, on the other hand, the defendants claim that if there was any consciousness of guilt at all it did not refer to the murders of Berardelli and Parmenter but to some punishment that they or their friends might receive for being slackers, which might include deportation, as well as some other form of punishment.
So you see, gentlemen, here is another controverted question of fact which you must determine. Now, gentlemen, on this question, again, what is the truth?
Now, let me state to you the salient parts of the testimony that may have some bearing upon this question of -consciousness of guilt, in order that you may understand and more intelligently apply the principles of the law upon this subject to the facts found by you to have been established. There seems to be no dispute about some matters as to what took place on the night of May 5, 1920, at the Johnson house. It is admitted that Sacco and Vanzetti, Orciani and Boda were at or near the Johnson house on that night at about 9:20 p. m.; that the two defendants were arrested on an electric car while returning from West Bridgewater to Brockton; that while in said car a Harrington & Richardson revolver of 38 calibre, loaded with five bullets, was taken from the defendant Vanzetti; that a Colt automatic pistol, fully loaded, of 32 calibre, together with 32 bullets, was taken at the Brockton police station from the person of the defendant Sacco. When I say "32 bullets", if I recall the testimony, that includes not only the loose bullets in the pocket, together with the cartridges that were in the pistol at that time.
As to what actually took place at the Johnson house, in the electric car, and at the Brockton police station, the parties are at great variance. At the time Mrs. Johnson went over to the Bartlett house, a distance of about 60 feet from her house, did the defendants follow her? Did they remain outside for about ten minutes while she was inside the Bartlett house, telephoning the West Bridgewater police? While Mrs. Johnson was in the house, did she see the light of a motorcycle flashing back and forth on one side and on the other? If she saw this, what was its purpose? Were there telephone wii-es connected with the Bartlett house that could be seen from the street? Were the defendants conscious of or suspicious of what Mrs. Johnson was doing in the Bartlett house? Did that consciousness have anything to do with their departure? The Commonwealth claims it did.
The defendants say first, that they did not follow Mrs. Johnson over to the Bartlett house and, secondly, that they left without taking the Overland automobile because there were no number plates on it.
Now, what is the truth? There again you see, gentlemen, there is a direct conflict between the parties. The Commonwealth claims that they left because of a consciousness of what happened at the Bartlett place. The defendants say no, they left because there were no number plates which they could put upon the Overland car and therefore they left it intending to return for it the next morning.
Now, then, the question you must determine is this: Did the defendants, in company with Orciani and Boda, leave the Johnson house because the automobile had no 1920 number plate on it or, because they were conscious of or became suspicious of what Mrs. Johnson did in the Bartlett house? If they left because they had no 1920 number plates upon the automobile, then you may say there was no consciousness of guilt in consequence of their sudden departure, but if they left because they were consciously guilty of what was being done by Mrs. Johnson in the Bartlett house, then you may say that is evidence tending to prove consciousness of guilt on their part.
But still, you must remember that such consciousness of guilt, if you find such consciousness of guilt, must relate to the murders of Berardelli and Parmenter and not to the fact that they and their friends were slackers and liable to be deported therefore or were even afraid that some kind of punishment might come to them.
So you see, gentlemen, here is another question of fact. They are directly opposite to each other, and you must determine what is the fact. You must find in your mind what was the fact on that night, because you must apply the law only to facts known to exist. The law should -never be found,-should be applied only to facts that are true, and therefore, here before you can apply this principle of the law as to what took place upon that occasion, you must first determine the facts, because the parties are at great variance upon this question.
The next question that you might consider would be what actually took place iif the electric car and the automobile when the defendants were arrested and immediately following after that. Is the testimony of Officer Connolly true, in that Vanzetti put his hand in his hip pocket? Did Officer Connolly say to Vanzetti, "You keep your hands out on your lap or you will be sorry"? Did his fellow-officer, Mr. Spear, hear Officer Connolly make this statement to Vanzetti? This is a question of fact you must again determine. The Court admitted this testimony of Officer Spear, not for the purpose of proving that Vanzetti put his hand in his hip pocket, but simply for the purpose of corroborating Officer Connolly to the effect that he heard said Connolly make the statement.
Now, you have a right to say that this is a very important question that you must determine. Its importance, as I have told you, depends upon what you find the fact to be. The Commonwealth claims that the defendant Vanzetti put his hand in his hip pocket for the purpose of using a revolver upon the arresting officer in order that he or both he and Sacco might escape.
The defendants have testified that nothing of that kind happened Again, what is the truth? If the defendant Vanzetti intended to do violence to the arresting officers or either of them if it had not been for the command of Officer Connolly, from this evidence you may find consciousness of guilt on the part of the defendant Vanzetti, but not against Sacco; and if you find that Vanzetti did so intend to use his revolver, that is evidence tending to prove self-consciousness of guilt of some crime committed by him. If it proves such self-consciousness, then you will naturally ascertain the -nature, character and gravity of the crime committed. If a person is willing to use a deadly weapon such as a revolver upon an arresting officer in order to gain his liberty, you have a right to ask what would naturally be the nature, character and gravity of the crime committed. But you must bear in mind, as I have told you, that Vanzetti and Sacco both have testified that nothing of the kind happened in the electric car or at any time, so far as the defendant Vanzetti is concerned. If there was on the part of Vanzetti no intention or thought of using a revolver upon either of the arresting officers then, of course, you will find from this evidence no consciousness of guilt of that fact.
I might say, further, it is not sufficient that the Officer Connolly thought either of the defendants were to draw a revolver by the manifestations made. The real question is as to the mental state of either and both defendants Vanzetti and Sacco at that time. Did either of them or both of them, as has been testified, have in their minds the desire and the purpose and intention of drawing and using a revolver upon either of the arresting officers? You heard the testimony of the officers. You heard what they said. You heard about the manifestations and actions of the members of the body, to wit, the arms. The question is, first, did either Vanzetti or Sacco make such movements? The defendants deny it. If they did make such movement, did they, the two defendants, or either of them, intend by what they did to use their revolvers, or did they make the movement for the purpose of reaching for their revolvers for the purpose of protecting themselves against the officers? Now, gentlemen, again there is a question of fact and you must draw such conclusions, if any, that should be drawn from the fact that you find to have been established.
I will not dwell further upon the testimony with reference to the defendant Sacco. A simple statement of the law with reference to the defendant Vanzetti applies to Sacco. What was on Sacco's mind at that time? Did he make one movement or two movements toward the front of his body? Did he make such manifestations? He denies it? And if he did, what did he have in mind at that time; not what the officer had in mind. What did Sacco have in his mind? Did he make that movement? Did he make, did he reach toward his pocket or toward the front of his clothing? Did he do that? If he did it, what was then Sacco's mind? Did he reach for the purpose of getting a revolver or pistol? If he did, then you have a right to say whether or not that was consciousness or evidence of consciousness of guilt so far as the killing of Berardelli and Parmenter is concerned. And this evidence, of course, against the defendant Sacco cannot be considered in any way against the defendant Vanzetti.
There are two pieces of testimony to which I should call your attention. One is the testimony of Chief Stewart, is to a conversation between him and the two defendants immediately following the arrest; and the other is the statement of both defendants of District Attorney Katzman on May 6th,1920, at the Brockton police station. What I told you during the trial I now repeat: That the statements made by one of the defendants can be used only against him and not against the other. In other words, the statements made by Vanzetti must relate to him alone and not to Sacco; and the statements made by Sacco must relate to him alone and not to Vanzetti.
In the first place, gentlemen, let me say to you that the law protects persons who are under arrest from making any statement to police officers or to third persons. Therefore, under our laws silence by a person under arrest cannot be taken as an admission against him, although he may be questioned by a police officer or such third person, but if he sees fit to voluntarily talk and during such talk makes an admission, such admissions may be used against him at the trial. The officer is under no obligation, as a matter of law, to warn a person of his rights who is under arrest. The law does, however, require that such statement made by a defendant shall be voluntarily and freely made. That is, they should be made without coercion, threats, duress, intimidation, inducement, or offer or hope of reward.
So the real test is that such statements or admissions shall be voluntarily made. This is so because the law says that such statements are presumed to be made voluntarily until evidence has been introduced to the contrary, although a defendant has not been even warned of his rights. In these cases, however, it is admitted that both defendants were informed by Chief Stewart and District Attorney Katzman that they were under no obligation to talk. Therefore, if they did see fit to talk, whatever they said might be used against them if such statement were voluntarily made and such statements, whatever they were, can be used, as I have told you, only against the utterer and against nobody else; and such statements that have been made, if they tend to prove a consciousness of guilt, such consciousness of guilt must relate solely to the murders of Berardelli and Parmenter.
I am not going to state even the salient part of these statements, partly because it would require too much time, but particularly because it is your duty to remember, to the best of your ability each and all of such statements. But the Commonwealth claims that many statements were made by each of these defendants to prove a consciousness of guilt and that such consciousness of guilt, in connection with other established facts, proves consciousness of guilt of the murders of Berardelli and Parmenter.
Now, the law says that intentional false statements, deception and concealment of truth are evidences of consciousness of guilt and can be used against a defendant when and only when, such consciousness relates to the crime charged in the indictment. That false statements were made by both of these defendants is admitted. This being true, you must determine their purpose, object and intent in making them. Did they know that Berardelli and Parmenter had been murdered? Did they realize and appreciate that they were being held in connection with these murders? Did they make false statements for the purpose of taking away suspicions from them of these murders? Did they knowingly make false statements as to their whereabouts on the day of the murders for the purpose of deceiving both Chief Stewart and District Attorney Katzman and eventually for the ultimate purpose of establishing their innocence of the crimes charged? If you find those statements were false and known to be false by these defendants and were made by them for the purpose of deceiving both Chief Stewart and District Attorney Katzman so that suspicion of the murders of Berardelli and Parmenter would be removed from them, then such false statements made under such circumstances is evidence of consciousness of guilt against them.
Now, in answer to this claim of the Commonwealth,-and I have only stated the claim of the Commonwealth,-the defendants say that although said statements were false, yet they were not made for the purpose of deceiving Chief Stewart or District Attorney Katzman in regard to any fact whatsoever that bad any relationship to the murders of Berardelli and Parmenter, because they said they had no knowledge whatsoever at that time of the murders of Berardelli and Parmenter. But they do, however, say that they made them to protect themselves and their friends from some kind of punishment, either by way of deportation because they were radicals, or because of their activities in the radical movement, or-because of radical literature that they then had possession of.
Again you have another controverted question of fact, the truth of which you must determine. If, then, such statements were made for the purpose of deception in regard to the facts relating to the murders of Berardelli and Parmenter, then you may consider such statements, as I have said before, as evidence of consciousness of guilt against them. If they were not made for such purpose or if they were made for any purpose whatsoever other than the concealment of the facts relating to such murders, then you will give the evidence no further consideration whatsoever.
It would seem unnecessary and inadvisable for me to consider any further with you the evidence concerning any issue herein involved of which the Commonwealth has introduced affirmative testimony. All of the essential features I feel have been considered and covered so far as the law is concerned, but there remains for me to consider with you the defense of alibi that has been raised by these defendants. It is sometimes called a plea of not guilty because as the defendants say in these cases that they were elsewhere at the time the alleged crimes were committed at South Braintree and therefore they could not have committed them. In other words, the defendants say it was physically impossible for them to have committed these crimes because at the very moment they were committed Vanzetti was in Plymouth and Sacco was in Boston-if you find such to be the fact, as it is purely a question of fact-then that would be a complete defense to these indictments and therefore you should return verdicts of not guilty.
An alibi is always a question of fact. Therefore, all testimony which tends to show that the defendants were in another place at the time the murders were committed tends also to rebut the evidence that they were present at the time and place the murders were committed. If the evidence of an alibi rebuts evidence of the Commonwealth to such an extent that it leaves reasonable doubt in your minds as to the commission of the murders charged against these defendants then you will return a verdict of not guilty.
On the other hand, if you find that the defendants or either of them committed the murders and the Commonwealth has satisfied you of such fact beyond reasonable doubt from all the evidence in these cases, including the evidence of an alibi, then you will return a verdict of guilty against both defendants or against such defendants as you may find guilty of such murders.
It is not my purpose to dwell longer upon any further consideration of the evidence in these cases. It would seem as though I have covered the most salient parts that have relationship to the issues involved in the indictments. Of course, counsel with great ability and fairness have discussed all the evidence with you in great detail. It therefore becomes your duty to give due consideration and weight to every suggestion made by them on both sides that have any casual relationship to any issue involved in these indictments.
If I have failed to present any claim made by either counsel, it is your duty to give the utmost consideration to every one of such claims made by them. This is so, gentlemen, because truth and justice cannot prevail without such consideration. For you should always bear in mind that the establishment of truth should be your object and your protection and justice always your shield; for when verdicts rest upon the solid foundation of truth and justice, the rights and protection of the people of Massachusetts are made secure.
My duties, gentlemen, have now closed and yours begun. From this mass of testimony introduced you must determine the facts. The law, as I have told you, places the entire responsibility in your hands. I therefore call upon you to constantly bear in mind these parting words of the Court that here, in this temple of justice, before God ,and man, you made oath that you would "well and truly try the issue between the Commonwealth and the defendants according to your evidence. So help you God."
I have now finished my charge. My duties are now at an end. I have tried to preside over the trial of these cases in a spirit of absolute fairness and impartiality to both sides. If I have failed in any respect you must not, gentlemen, in any manner fail in yours. I therefore now commit into your sacred keeping the decision of these cases. You will therefore take the silent sanctuary where may them with you into yonder jury room, and sound judgment preside over the great Dispenser of Justice, wisdom and sound judgment preside over all your deliberations. Reflect long and well so that when you return your verdict shall stand forth before the world as your judgment of truth and justice. Gentlemen, be just and fear not. Let all the end thou aimest at be thy country’s, they God’s and truth’s.
I would like to see counsel just a moment.
(Conference at bench between Court and counsel.)
THE COURT. (To the jury) You may go out a few minutes, gentlemen.
(The jury retire from the court room.)
MR. THOMAS MCANARNEY. Now comes the defendant Sacco and moves that the Court, on all the evidence, order the jury to return a verdict of not guilty as to the defendant Sacco in cases 545 and 546. This applies to motion previously overruled by the judge in the lobby, where it was on a single sheet of paper....
THE COURT. (To the court officers.) Ask the jury to come back, please.
(The jury return to court room.)
THE COURT. I said in my charge that a new hammer and spring were put on the Berardelli revolver at the Iver Johnson place. Upon an examination of the record and upon suggestion of counsel for the defendants I find that I was in error in that statement. The record shows there was only a new hammer part upon the revolver at the Iver Johnson place.
I also find I made this statement, and that was that the Saturday night previous to the murder one Bostock saw a revolver with Berardelli that was similar- to the Berardelli revolver. It has been suggested that that is not consistent with the record. I am going to direct your attention to the record on that question that Mr. Moore read to you this morning. You remember the first thing he did he read to you a record of the evidence on that question and therefore you must be governed by that and not what I said. And let me also say what I think I said during the charge; You must remember this evidence. It is what you say the evidence is. It is not what I say it is. It is not what counsel say it is. It is what you say it is. And you must remember the evidence and you must be governed by what you say the evidence is, and if there is any other question that may come up, no matter whether the statement be by the Court or by counsel, you will, of course, be governed not by any of those statements, but by what you remember, what you say the evidence is, because that is the question which is exclusively within your province.
Now, is there anything else, Mr. McAnarney?
MR. JEREMIAH MCANARNEY. I wished to call the jury's attention to one thing, and I think that is all.
THE COURT. All right.