by Jack Finney
"A man named Johnson pleaded guilty to stealing a package of tea worth $3 and was sentenced to the Penitentiary for three months.
"A man giving his name as Thomas Little, a cooper, from Boston, was then put at the bar on a charge of stealing an iron wrench from a bar room up town, into which he went for a drink. He said he didn't mean to steal the wrench, he only had it to assist the landlady in tapping a barrel of beer, and that while working about he put it in his pocket. He said he had no friends in the City, was a stranger, and came here in search of work. The Recorder said the story was a 'made-up' one—30 days in the Penitentiary.
"John Tappan, a miserable-looking old man, then hobbled up to the bar. His neck was twisted to one side, and he was otherwise maimed. He came to answer to the charge of stealing a wood engraving worth 25 cents. He did not deny the charge, but dwelt emphatically on the fact of his having been 'an old soldier,' and of having been 'in this country more than 28 years.' His mother (who looked much younger than himself) came forward and begged that he might be forgiven. 'Sure, there isn't much harm in the poor fellow, any how,' she said, and upon her promise to take him home with her the Court suspended judgment.
"Mary A. Livingston was tried and convicted of stealing a table-cloth from Eunis McGowan. Four months in the Penitentiary.
"John Mullens was arraigned for an assault and battery on his wife, Ellen. Mrs. Mullens was put upon the stand, but was very reluctant to press the charge which she had already made before one of the Police Justices. Her head was bound up, and she trembled violently. 'In the name of God, Judge, let my husband go this time,' she implored. The Recorder said he had no disposition to be lenient with brutes who so maltreated their wives. He would give the full extent of the law—six months in the Penitentiary. When Mrs. Mullens saw that her entreaty for her husband's pardon was of no avail, she cried loudly, and pointing to a pretty little girl of about six years, that sat on one of the benches, said 'What will now become of my darling little girl? Oh, God! Oh, God!'
" 'You will be better off away from your brute of a husband,' said the Recorder.
" 'But he is our support, and we'll starve,' she answered.
" 'The City authorities will support you if you cannot get along in any other way—I will assist you myself—call at my office.'
"But Mrs. Mullens could not be consoled, and when her husband was being escorted out of the Court, she turned toward him and screamed, 'Good bye, Mullens,' whereupon many present laughed loudly.
"Mr. Beale's agent for the Prison Association interposed himself in behalf of Mr. and Mrs. Mullens, and finally succeeded in effecting the release of Mullens on his promising never to get drunk again…."
11
The trial of Emma Cunningham was also quick, comparatively speaking; and by our customs a strange one. They held it here in the new courthouse at City Hall Park, in the Court of Oyer and Terminer, and these were its principal figures. On the bench, presiding over the trial: Judge Henry E. Davies. This man, S. B. Cushing, assisted—a little—in the prosecution, as attorney general of the state.
But this is A. Oakey Hall, district attorney, and he was the actual prosecutor.
He's an interesting man, reminding me of Jimmy Walker, the dashing mayor of New York in the twenties. When Hall later became mayor and part of the infamous Tweed Ring, he was labeled by Thomas Nast, the great political cartoonist, "O.K. Haul," for marking crooked bills "O.K." for payment. Albert Bigelow Paine said Oakey Hall was "a frequenter of clubs, a beau of fashion, a wit, a writer of clever tales, a punster, a versatile mountebank, a lover of social distinction and applause." You wonder how he seemed, formidable or only a dilettante, to the defense attorneys, who were a pretty formidable pair.
They are Henry L. Clinton, here, and his associate, Judge Dean. Just look at Clinton's face; this is from a Mathew Brady ambrotype: I'd want him on my side, not against me. Dean, too—also from a Brady ambrotype —looks tough.
And here, of course, is Emma Cunningham—drawn directly from a Meade ambrotype, "as she appears in court," said the picture caption. Wearing full widow's weeds, she is now literally to be tried for her life. Yet in the bizarre mind just behind those eyes she is already (this became known in time) looking far beyond this trial. As though the trial were already behind her, she is still thinking and planning you know what: how to get everything the Doctor owned.
The trial opened here on May 4 with a panel of four hundred jurors sitting or standing wherever they could find places. The panel contained no women because, of course, they were not fully reasoning beings. An adjoining room, the Marine Court, its folding doors opened, was filled with spectators, and to their disappointment Mrs. Cunningham sat with her mourning veil lowered at first. Helen and Augusta sat with her. George and Willie had been sent off to boarding school. John Eckel, whose trial had been separated from Mrs. Cunningham's, sat with his counsel wearing "a particularly fine-looking auburn wig, and were it not for an occasional glance of his eyes that seemed rather apprehensive, he would have seemed" in high spirits."
It was hot and the "breathing of the fetid exhalations of 1,500 lawyers and rowdies, confined in the ill-ventilated rooms of City Hall," said the Tribune man crankily, "is enough to try an ordinary constitution severely."
Two hours of hearing excuses from prospective jurors, then at one o'clock A. Oakey Hall stood to say, "… I call up from the calendar of the Court the indictment against Mrs. Cunningham, charging her with murder. We are ready to proceed…."
"The prisoner is ready," said Dean.
"Bring the prisoner to the bar," Judge Davies replied.
"Mrs. Cunningham was conducted by an officer to a seat beside her counsel," the Times continued, "and removed her veil. Her face was much flushed, and she trembled slightly….
"Mr. Clinton arose and said, 'We waive the reading of the indictment, and would put in a plea of Not guilty.' "
But real trials have no sense of drama; now they began questioning members of the jury panel, and it went on for hours. The first few were excused, and then—this is one thing I meant by saying aspects of this trial were strange to our custom—panelist Gilbert Oakley said that while he had no prejudice against her, "he had an impression as to who committed the murder, and suspected that Mrs. Cunningham might possibly know something about it, as it occurred in her house." If I can judge from my own experiences as a juror, both sides today would join in throwing Oakley out; instead they swore him in.
Another had read all the inquest testimony, and had known Harvey Burdell as a passing acquaintance, but he was sworn in, too. At four in the afternoon they took a break, then back at it in the hot smelly room: "A fan fluttered under Helen's veil, Augusta sat motionless, her eyes fixed on the jurors."
Nathaniel Chater "had formed no opinion" but thought Farrell's testimony important, and had an opinion as to its truth. If true, he thought it would implicate Mrs. Cunningham, as an inmate of the house. He had an "impression concerning her guilt or knowledge of the murder, unfavorable to her." But he was nevertheless quite competent to serve on the jury, Judge Davies ruled, and the defense had to use a peremptory challenge to keep him off it. And so in only this one day they picked a full jury, adjourned, and were ready to begin trial in the morning.
This is the room next morning: jury at the right, Mrs. Cunningham up front just beyond the standing man, Helen beside her, Augusta not here. The rest are reporters and spectators, crowding in wherever they can. As the trial begins, Mrs. Cunningham has already discussed or is about to—she was in the Tombs when she did this—what is going to happen as soon as the trial is over and she is free again. She had had this discussion, or is about to have it, with Dr. Samuel Catlin, her old family physician when she lived in Brooklyn; and whom, as she later said, she has "in her power."
But now the trial is just beginning: with A. Oakey Hall standing, facing the jury, and demanding Emma Cunningham's life in a speech that would be better illustrated than presented in words. If I could, I'd imitate cart
oonist Saul Steinberg, and show the D.A.'s address as a huge speech balloon filling the courtroom above everyone's head, and packed with a montage of ornate curlicues, skyrockets, fancy border designs from a nineteenth-century printer's type book, and samples of Palmer penmanship.
He started out fairly simply with a statement of what he said he would prove by witnesses, including that this murder "was the deed of a woman … a deed planned and contemplated from a different stand-point from which men of the world contemplate crime, perpetrated to a great extent with the ignorance of human nature which, compared with men of the world, women at all times … have possessed…."
But trying a woman had its problems, A. Oakey Hall told the jury; because "she sits there, a veiled picture of sorrow … by her looks demanding a sympathy which belongs not to a murderess but to a woman…. Oh!" he said, the verbal fireworks suddenly igniting. "It is no wonder that all these holy associations that cluster around the name of woman should force themselves into the jury-box…. When we remember the wife of our life until death, when we remember the children who are to be the future women of the world, that sit upon our knee, and we feel as we look upon young girlhood and growing maidenhood, we say, can it ever be that this being, upon whom God Almighty has put His own seal of purity, should ever live to be the … midnight assassin….
"And yet, when we open the book of history, we are forced to come to the conviction that crime knows no sex. In … Romish history we read of her who, having murdered her husband, the servant of Imperial Rome, drove her chariot over the dead body of her father. And … Fulvia, when the head of Cicero was brought to her, spat upon it, and drew from her bosom, which had nourished children, a deadly bodkin, and thrust it again and again through the tongue of that gaping corpse. The same great dramatist who spoke to you of the wife of William Tell narrates how Agnes, Queen of Hungary, bathed her feet in the blood of sixty-three knights, exclaiming as she did, 'It seems as if I were wading in the May dew.'… Throughout the life of Dr. Burdell the prisoner pursued him with a fiendish hate, jealousy and revenge until the knife held by this woman fiend had found a repose in his heart…."
The D.A. reviewed the history of the relationship between Mrs. Cunningham and Harvey Burdell, and said that, through witnesses: "We will take the roof off [31 Bond], and allow you to gaze into that depth of moral degradation which in that family clustered around that woman." He talked of the persecution of "this hunted, haunted man by this fiend in woman's shape," of how "with the sly cunning of her sex" she spied on him, and said that when Eckel arrived, "the greedy and lascivious eyes of this woman … fastened upon him."
He offered his theory of why the murder was committed and how; hinted that Eckel and the daughters had helped; referred to the slyness of Snodgrass. He fitted facts to his theory, referring to the sending of the servants to bed; the burning, he said, of the bloody clothes in which the murder had been done; and all the other damning things his witnesses would testify to. These things, he said, would prove that Emma Cunningham, "woman though she is, was guilty of the crime." (He added that Daniel Ullman was "a highly honorable man who had no part or parcel in that household.")
And then in only the next two days, D.A. Hall presented all of his witnesses. Old Dr. Francis once again sat describing the wounds he'd found in the body he'd examined on the morning it was found. Hannah Conlon told her familiar story of the Thanksgiving Day miscarriage; of the many quarrels at 31; of Mrs. Cunningham's overheard threats; of being sent to bed early on the night of the murder….
On cross-examination the defense asked Hannah if Mary Donaho hadn't been fired for drunkenness, but Judge Davies wouldn't allow "any statements in regard to her character no matter how humble she may be." When they asked if Hannah herself hadn't been "in the habit of getting drunk a good deal," she said, "I could always take my share, but never so much as not to be able to work. I never saw anyone throw it over their shoulders, whether they were rich or poor."
Catherine Stansbury … John Burchell … Mary Donaho … On cross-exam the defense again suggested that Mary was a drunk; had, in fact, been fired by Mrs. Cunningham for drunkenness. She denied it, but in doing so revealed a flash of hostility: "I was never in the beastly state of intoxication that I have seen Mrs. Cunningham in," Mary retorted, and the crowd laughed, the judge rapping his gavel.
When Dr. Stephen Maine was on the stand, the D.A. interrupted: he had commissioned the building of a model of the house at 31 Bond, it had just arrived, and: "A large and perfect model of Dr. Burdell's house, exhibiting every story separate, with stairs, windows, and furniture was now brought in and shown to the Jury, who rose from their seats and gave it a minute examination." Also brought in, courtesy of the D.A., were four paintings showing the four sides of the murder room; and someday, somewhere, I'm going to discover and recognize that miniature house on sale at a junk shop, and buy it; at any price. When I get it home the four paintings will be stuck away inside it. Dr. Maine used both the little house and the paintings in finishing his testimony.
The cross-exam was effective. Yes, said Maine, he had once lived at 29 Bond right beside number 31. It was a "stereotype" of number 31, in fact; they were both "pattern" houses, exactly alike. And yes, they were "very firmly built, and the walls were thick and solid."
"When you were in an upper room, could you hear a person moving in the story below you?"
"No, you could not do so in any of those houses unless the doors were open." So now there existed for the jury a possible innocent explanation of why no one in the house had heard any sound of murder on the floor below them.
Daniel Ullman … DeWitt Baldwin … the cops who'd heard Dr. Burdell charge Mrs. Cunningham with stealing papers from his safe … Samuel Parmly, whose dog had stood on the steps of 31 the night of the murder; and who had seen mysterious lights in an attic room, and smelled the stink of burning leather and wool… a lockmaker … doctors who'd done the postmortem … witnesses who'd heard quarrels and sinister remarks.
Then came Mrs. Frederika Schwartzaelder, who now lived at 29 Bond, next door to 31. Her bedroom was beside the room in which the Doctor had been murdered, and she'd been in her bedroom before eleven that night, but heard no sound.
I don't know why the prosecution called her, but the defense was ready. On cross-examination she said four men had recently come to her house, including two she now recognized here in the courtroom. One was an assistant defense attorney, the other Dr. David Uhl, who had been a witness at the inquest, and who was also Emma Cunningham's doctor. The men had asked permission to come into her house, and conduct an experiment. And then, with Mrs. Schwartzaelder, they all stood in her bedroom while people next door in the murder room yelled, "Murder!" And, said Mrs. Schwartzaelder, they could all plainly hear those shrieks coming through the walls.
But on the night of the murder she'd heard nothing, so the jury now had something else to consider. The cries of murder heard by passersby that night might have come not from the house but from the street, from playful "rowdies," and the people in the house at 31 who said they'd heard nothing that night could have been telling the truth.
A couple of prison matrons from the Tombs said Emma Cunningham was left-handed; they'd watched her embroidering. But the prosecution couldn't get Dr. Woodward to say the murderer had been left-handed; you couldn't tell that from the wounds, he said.
And then David Uhl, Emma Cunningham's doctor, helped her a lot. The dagger found in her possession, he testified for one thing, could not possibly have made the deep wounds in Dr. Burdell's body. "Would you expect to find marks of violence upon the person who committed the act?"
"I should undoubtedly."
"Did you look particularly at Mrs. Burdell that day [of the discovery of the murder] to see if she had any marks of violence upon her?"
He had. "… when I left the room I shook hands with her on purpose to get very near her person. I did not discover any marks of violence upon her. She had a fur cape which dropped off her shoulders."
"Were her shoulders bare so that you could see?"
"Yes, Sir."
"Did you look at her neck and hands … ?"
He had, and saw no marks. And were the wounds on the corpse made by a left-or right-handed person? No telling, said Dr. Uhl, and then he gave the listening room an explicit and detailed description of every place blood had been found in the house. It was Dr. David Uhl, in fact, who had directed the artist in making the four paintings being used here in the courtroom to show where blood was found in the murder room. As for other places, Dr. Uhl described bloody marks found out in the hall and on down the staircase, some of these being "on the right-hand side of the wall," where, presumably, a left-handed Emma Cunningham would not have put them.
"Would it be a place where a person going downstairs would naturally put his hands on the wall, if going down in the dark?"
"Yes, Sir." And, said Uhl, there was blood "on the door at the foot of the basement stairs … on the basement front door there was a finger mark in blood on the hinge side, very much like a spot which one would have made feeling for the knob of the door with his fingers…."
When Dr. David Uhl had finished, the possibility of, not resident John Eckel, but some outsider feeling his way out of a dark and unfamiliar house, finally reaching the front door and escaping into the night, seemed real. When Uhl stepped down from the witness stand to walk out past Emma Cunningham and her counsel, he had helped her very much, and if she now thought of him, her family physician for the past year and a half, as also being a loyal and trustworthy friend—and later evidence shows she did think this—it is understandable.
