Cora and The Doctor: or, Revelations of A Physician's Wife

He then proceeded to read from Roscoe on Criminal evidence, Chitty's Criminal Law, Archbold, etc., etc. After which, he concluded by saying, "This charge we expect to prove by the confession of Hugh Fuller on his death bed, where we naturally expect the utmost sincerity, and where there could be no motive for self-accusation, and a confession of that which must forever tarnish the fair fame of the confessor, – no motive falsely to criminate his fellow men. His testimony is entitled to the highest consideration, supported as it will be by an array of circumstantial evidence, amounting almost to a moral demonstration."

He then called George Wilson, Justice of the peace, who after being sworn read the Affidavit, as he took it from the lips of the dying man.

AFFIDAVIT

"COMMONWEALTH OF MASSACHUSETTS

"County of – ss. Hugh Fuller of Crawford, in said county, yeoman, personally before me, and lying upon his death-bed, on oath declared that he affixed his name as witness to the last will and testament of the late Joseph Lee of said town and county, then lying on his death-bed, on the twenty-third of October, one thousand eight hundred and thirty-seven. And also at the same time and place affixed his signature to a deed by the said Joseph Lee, conveying property from him to widow Churchill.

"And the deponent farther declares, that the other witnesses of these documents were Oscar Colby, and Edward Stone.

"The deponent also solemnly declares that the papers were then delivered by said Joseph Lee to said Oscar Colby with instructions that the first document should be retained by him, Oscar Colby, until after the testator's decease, and that the second should be immediately conveyed by said Colby to the aforesaid Widow Churchill.

"The deponent still farther declares that the said Oscar Colby enjoined upon him and Edward Stone, now deceased, profound secrecy in respect to the first of these transactions; and that immediately upon the death of the late Joseph Lee, the said Colby came to him renewing the injunction with a proffer of money, as reward for so doing; and that both he and Joseph Lee, son of the deceased Joseph Lee, subsequently came to him to instruct him how to appear, and what to say, if cited before the Probate Court; and at the same time paid him certain sums of money in consideration of his maintaining such secrecy.

"And the deponent also declares that his abetting of this crime has ever since lain heavily upon his conscience, and has at times harrowed his soul with the most dreadful remorse; and that he cannot die in peace until he has made a frank, and full confession of this sin, and implored forgiveness of God, and his fellow men; more particularly of those whom he has thus injured.

"All this, the deponent declares to be true in the presence of that God before whom he expects in a few moments to appear; and the same was subscribed and sworn to on this fourth day of September, in the year of our Lord one thousand eight hundred and forty-four.

Hugh Fuller.

Crawford, September 4th, 1844."

In corroboration of this testimony, the following witnesses were called and sworn:

Frank Lenox, Allen Mansfield, Lucy Lee Mansfield, Susan Burns, Jacob Strong, who bore testimony similar to that given by them before the Probate Court, and showing the oft declared intention of the late Joseph Lee to revoke his first will, and to make a second.

They also testified that up to the time of the alleged crime, the prisoners were comparative strangers, and that from that period, they had been leagued together in the closest alliance; first in the house of the late Joseph Lee immediately after his funeral, then in the execution of the will, and subsequently in a voyage to Europe, from which they lately returned together after an absence of some years; and finally that they were together up to the time of their arrest.

To reveal the nature of their intercourse when together, Jacob Strong, steward of the late Joseph Lee, testified, that on the evening after the funeral of his master, his son Joseph, and Lawyer Colby were together in the back parlor of his master's residence, where they called for wines, brandy and cigars, and where they spent most of the night in drunkenness.

And he farther testified that at sundry times during the succeeding month, he had been often awaked at late hours of the night, by their midnight carousals; and alarmed by their abuse of each other. And that he had often interposed to separate and quiet them.

Here the prosecution closed the presentation of the case in behalf of the government, reserving the right to introduce rebutting testimony.

It being past twelve o'clock, the court adjourned till two P. M.

Two o'clock, P. M. Tuesday afternoon. The Court met pursuant to adjournment.

The defence opened. Mr. Curtiss arose. "Hay it please your Honor, and you, Gentlemen of the Jury, I arise under no small embarrassment to plead the cause of my clients in this important trial, – an embarrassment which arises from the overwhelming tide of public indignation, which in its mighty current, and irresistible force threatens to carry away every barrier of public justice, and public safety.

"Upon the alleged confession of Hugh Fuller this tide deluged the surrounding country, as when the dam of a great river is carried away, and the pent up waters are let loose, bearing down all before them.

"We, Witnesses, Counsellors, and Jurors are in no small danger of being carried away as float-wood whither the mighty torrent shall bear us.

"I cannot resist the conviction that the District Attorney, by his quick sympathies, has so far participated in this popular feeling, that he has not in this case sustained his deservedly high reputation for equity, and impartiality. My great esteem for him as an advocate led me to expect that he would devote to this exciting trial, his characteristic calmness, and discrimination, that he would carefully weigh the evidence, and avoid all appeals to passion or prejudice. Judge then of my surprise that in the very beginning of his speech, he should appeal to your sympathy in behalf of the daughter of the late Joseph Lee.

"Gentlemen of the Jury, you are here for the exercise, not of sympathy, but of justice. And my astonishment was increased by his attempt to awaken your prejudices against my clients, by reference to any peculiarities in their personal appearance. What honest citizen; nay, what one of you could be suddenly dragged from your bed at night, and committed to prison on such a charge; be brought from your cell handcuffed and strongly guarded, and here locked up in the felon's box in the presence of so large and respectable an assembly of your fellow citizens without some emotion blanching your countenance, or flushing it with indignation.

"But my astonishment reached its highest pitch, when having waited hour after hour in painful expectation of that circumstantial testimony, which was to amount to "a moral demonstration" of my clients' guilt, and waiving in apprehension of it my right to cross examine his witnesses, I heard him acknowledge to the court that the evidence for the prosecution was in, and the case was submitted to the defence.

"His citations from legal authors, and his exposition of the laws pertaining to the crime for which my clients are arraigned meet my most cordial approbation, and supersede the necessity of any additional comments on the part of the defence. Of the three crimes charged in these indictments, the two latter are subordinate to, and dependent on the first. If there was no conspiracy, there surely could have been no wilful perjury, no suborning of witnesses in pursuance of that conspiracy.

"Setting aside the confession, what proof has been adduced to support the charge of conspiracy? None that would justify any honest citizen in cherishing a suspicion of his neighbor; none that would not blast the fairest character as with the breath of calumny. Your verdict, if you find my clients guilty, must depend almost entirely upon the credibility of a deceased witness, upon the affidavit of Hugh Fuller.

"The authorities already submitted to you by my legal friend, teach you that the testimony of a dying man should be received, if at all, with great caution. At best it is only hearsay evidence, and this is almost the only form of that species of testimony which is admissible at the bar. Before you attach to it any importance, you are bound to know that the witness at the date of the affidavit was in a sound mind, free from intellectual aberrations, and from bias of judgment.

"Has the prosecution relieved your minds from all doubt on these points? Nay, gentlemen. It has submitted no substantial proof of even the sanity of that witness. I am now prepared to prove by testimony clear and abundant that this affidavit contains nothing more than the hallucination of an insane man. This being established, I shall submit the case, after the argument of my associate, for your decision."

During the speech of Mr. Curtiss, the vast audience hung in breathless silence upon his lips; and when he resumed his seat, it was very evident that the tide of public feeling had begun to turn.

The prisoners, inspired with hope, rose from their seats, and stood leaning over the pickets of their boxes. Such was the eagerness to catch every word that the sheriff was obliged several times to rap with his pole and call "order! Order!!"

The witnesses for the defence were next called, and sworn, and examined. First, Frank Lenox.

Mr. Curtiss. "What is your profession?"

"I am a physician."

"How long have you been in practice?"

"About thirteen years."

"Was Hugh Fuller your patient?"

"He was."

"What was his disease?"

"Typhoid fever."

"Have you been familiar with that fever in your practice?"

"I have had many cases every year."

"How have you commonly found the reason affected by this disease?"

"The mind is frequently subject to aberration, but more frequently in the typhus, than in the typhoid fever."

"Had you any reason to think the mind of Mr. Fuller was thus affected by his disease?"

"At times his language was strange, and his thoughts incoherent. But he was more free from aberration than patients generally in that fever."

"How near the date of his alleged confession, do you remember to have witnessed any such wanderings?"

"I think his mind was rather wandering on the previous morning."

Mr. Burke. "Had you given him medicine from which unnatural excitement could result?"

"I had not."

Cross examination by Mr. Willard.

"Did you consider him of sound mind and memory on the night of his confession?"

"I did."

"How did he appear after the confession?"

"Very much relieved. – calm and peaceful."

"Are you confident that his mental aberrations resulted from his disease?"

"I considered them in a great measure the result of a troubled conscience."

Mr. Curtiss sprang to his feet, and said, "May it please your Honor, I must object to that question. It calls forth a reply not legitimate to the profession of the witness. Cases of conscience belong to the Clergy."

Judge. "The witness will proceed, confining himself to facts pertaining to the case."

Mr. Marshall, the Attorney General, asked, "was there any particular subject on which his mind seemed to be dwelling in what you supposed mental aberrations?"

Mr. Burke arose under considerable excitement. "Your Honor, I must protest against the introduction of testimony going to show the subject of a crazy man's thoughts."

Mr. Marshall stood waiting to reply. "Your Honor will consider the special importance of this testimony as showing the state of the confessor's mind, and the subject which principally occupied his thoughts."

After a prolonged discussion of the admissibility of this testimony by the learned counsellors, the Judge decided the question in order, and directed the witness to proceed.

"He often repeated the words, 'that's all I remember; they can't take me up for that. And if they do, I'm not answerable; they that hired me will have to bear the blame,' and so much more of the same general import that I was led to suspect," —

"Your Honor," exclaimed both the lawyers for the defence. The Junior waived, however, in favor of the Senior. "I hope your Honor will remind the witness that he is here not to relate suspicions, but facts."

Judge. "The witness may proceed and restrict himself to facts, or to such professional opinions, as are material to the case. He is to give his honest views frankly and fully."

"I was saying that I suspected, he was laboring under remorse of conscience, and I urged him, if such were the fact, to seek relief by confession."

Mr. Willard. "What was the date of this conversation?"

"At several different times. The one to which I particularly referred, took place two days before his death."

Dr. Clapp, partner of Dr. Lenox, was called, whose testimony corroborated that of the preceding witness.

Mrs. Martha Fuller was next called.

Mr. Curtiss. "What was your relation to Hugh Fuller?"

"His wife."

"Did you discover anything during your husband's sickness which led you to think him insane?"

"I did."

"At what part of it more particularly?"

"The latter part."

"What did he say that led you to infer that he was crazy?"

"Sometimes he did not know me, called me by another name, talked wildly, and was frequently wandering in his sleep."

"How near the time of this alleged confession did you notice any signs of insanity?"

"On the night and day preceding his death."

Cross examination by Mr. Willard.

"Did you hear your husband's confession?"

"I did."

"Did you consider him crazy at that time?"

Hesitating. "I did not."

"What reasons had you for not considering him so?"

"He called us all by name, and talked rationally about other things, and gave me directions about the children."

"Had he frequently talked with you in this way during his sickness?"

"He had not."

"But during his sickness, had there not been days, or longer seasons, when he appeared rational?"

"There were."

"You have said he was often wild and wandering. Do you mean he was so most of the time, or only now and then?"

"Only now and then."

"Had he ever appeared so before this sickness?"

Witness bursts into tears.

Mr. Curtiss. "Your Honor, I claim the protection of the Court in behalf of this witness."

Mr. Marshall. "Your Honor, we have no disposition to impose upon the witness, who certainly has our tenderest sympathy in these trying circumstances. But the question of my worthy colleague was designed to elicit from the witness, the fact whether or not her lamented husband previous to his last sickness, had ever exhibited signs of insanity?"

Mr. Burke. "Your Honor, I object to the question as irrelevant."

Judge. "The question is pertinent and the witness will answer according to her best recollections."

Witness. "I cannot say that he did."

Mr. Willard. "Did he ever appear depressed in spirits?"

"He did."

"Can you recollect what he used to say at such times?"

She weeps.

"Take your time, my good woman." The sheriff at a motion from Mr. Willard brings her a chair. "Try to recollect what he said at such times."

"He used to fear we should come to poverty and disgrace."

"Did he ever explain the ground of those fears?"

"He did not, when awake."

"What do you mean to imply by that?"

"He sometimes talked about it in his sleep; but I couldn't always make out what he said."

"Did the drift of his conversation at such times correspond with that when he was wild and wandering during his sickness?"

"I think it did."

The Court was then adjourned until nine o'clock the next morning.

CHAPTER XXXI

 
"As lawyers o'er a doubt
Which, puzzling long, at last, they puzzle out." Cowper.
 

Wednesday, November 6th.

Nine o'clock. The Court met pursuant to adjournment. The excitement has much increased. The court-room is crowded to its utmost capacity, and the most intense interest manifested as to the decision.

Mr. Andrews was called and sworn.

Mr. Curtiss. "Did you frequently see Hugh Fuller during his sickness?"

"I watched with him twice."

"Have you often watched with persons in this fever?"

"I have."

"How were their minds affected?"

"They were generally deranged."

"Did you witness any appearance of insanity in Mr. Fuller?"

"I did."

"How was it manifested?"

"He once imagined I was his mother, and that I was instructing him. Another time he thought he was building a house, and called out to his workmen about the work."

Before the cross examination, I noticed Mr. Willard speaking in a low voice to Mr. Marshall, when he took his hat and retired from the court-room.

Mr. Marshall. "Do you mean to convey the idea that Mr. Fuller was not rational during any part of the nights that you watched with him?"

"By no means, sir. I mean that he was a little out of his head."

"Did he recognize you?"

"He did, and often called me by name, and told me what medicine he was to take."

"When he thought you were his mother, what did he say?"

"He said he remembered my instructing him to tell the truth, and how much happier he should have been if he had regarded my instructions."

Mrs. Andrews was called.

Mr. Curtiss. "Did you see Mr. Fuller during his sickness?"

"I watched with him the night before he died."

"How did he appear at that time?"

"The first part of the night, he took me to be his wife, and talked with me about the children."

"Relate all you remember of his wanderings."

"He was very much excited and wanted to get out of bed and go to see Dr. Lenox – Said he must go, and we had great difficulty in pacifying him."

Cross examination.

Mr. Marshall. "Do you remember what he said to you about the children?"

"He charged me never to let the girls marry a man who had perjured himself."

This reply produced great sensation, and the sheriff again thundered "order! ORDER!!"

"Did he appear more calm toward morning?"

"Oh, no! He grew more and more excited until we promised to send for the Doctor."

"Did that wholly pacify him?"

"He seemed so relieved and rational that I staid alone with him while Mr. Hardy went for the Doctor, and he hardly spoke during his absence."

"How did he appear during that time?"

"He lay with his eyes closed, and once I thought I heard the words. 'Oh, God! – Oh, Jesus, forgive me!'"

Mr. Curtiss called Mr. Hardy. "Did you discover any signs of insanity in Mr. Fuller on the night preceding his death?"

"I did."

"What were they?"

"Substantially those already testified to by Mrs. Andrews. He called incessantly for the Doctor, saying he could not die till he had seen him."

Mr. Curtiss, under excitement, interrupted the witness, saying, "you need not repeat the testimony of other witnesses."

Cross-examination by Mr. Marshall. "Did he tell you why he wished to see the Doctor?"

"He said, he had something of great importance to confess to him, and he could not die with it upon his conscience."

"How did he appear when you returned with the Doctor?"

"Perfectly calm and rational."

"Who were then present?"

"Dr. Lenox, Mrs. Fuller, Mrs. Andrews, and myself."

"Relate what occurred."

"The Doctor went directly to the bed. When Mr. Fuller saw him, he said audibly, 'thank God!' He then added, that he had committed a great crime which he wished to confess before he died, and that it related to the last will of the late Joseph Lee. Dr. Lenox immediately requested me to go for the nearest magistrate. When I returned with Justice Wilson, the Doctor was praying with the sick man. Fuller's wife holding her husband and weeping, stood the other side of the bed with Mrs. Andrews. Prayer being closed, the Doctor informed Justice Wilson of the wish of Hugh Fuller to make a confession which it was important to take in a legal form. The Justice then took the sick man's confession in our presence in the form of an affidavit."

Mr. Balch was next called, and as he took the stand Mr. Willard, with a hasty and agitated step, returned to the court room and resumed his seat. Every eye was turned toward him, as he appeared to be under great excitement which he in vain endeavored to conceal. He hastily whispered to Mr. Marshall, who started in surprise, and seemed fully to participate in his feelings.

Mr. Curtiss to Mr. Balch. "Were you acquainted with Mr. Fuller?"

"Intimately; I lived next door to him, and we frequently worked together. I saw him almost daily before his death."

"Did you see him often during his sickness?"

"I was at his house every day to inquire after him, and I watched with him several nights."

"Did you discover signs of insanity in him?"

"I did."

"Relate to the court what you recollect of them."

"He frequently talked with me about business that he had no connection with, and about all sorts of things that he never talked about in health."

"When did you see him last?"

"On the day before his death."

"How did he then appear?"

"He was as wild as a hawk, and kept trying to get off the bed, and pulling the clothes."

"What did he talk about?"

"He spoke of houses, and farms, and cattle, and workmen, and all sorts of things, and run from one to another without any connection."

Here Mr. Curtis rose with an air of triumph and exultation and said, "Your Honor, unless the counsel for the prosecution wish to cross-examine this witness, we shall here close the direct testimony for the defence."

Mr. Willard, who had been sitting during the examination of the last witness, with his face concealed by a book, now rose and said, "Your Honor, and you, Gentlemen of the Jury, we shall waive the privilege of cross-examining the last witness for the defence, that we may hasten to introduce a few items of rebutting testimony at this stage of the trial."

This was said in so low a voice as scarcely to be heard, while he actually trembled with the effort to suppress his emotions. "For this purpose," he continued, "I recall Mrs. Martha Fuller."

Mr. Curtiss objects. "She has been already on the stand."

Mr. Willard. "Your Honor, I recall her to elicit new testimony, not known at that time."

Mrs. Fuller having presented herself, he asked leave of the court to inquire, if any one here present were acquainted with the hand writing of Oscar Colby, of Edward Stone, of Hugh Fuller, or of the late Joseph Lee.

Many voices responded to the call; a number of persons came forward, and having taken the oath, Mr. Willard advanced toward them, and slowly drawing out his large pocket-book, proceeded to take from thence two yellow and time-worn documents. He partially unfolded them, when each of the signatures were identified, with the exception of that of Edward Stone.

While this was going on the prisoners started suddenly from their seats, lawyers and reporters dropped their pens in their eagerness to witness what was to follow; even the counsellors for the defence seemed to hang in breathless suspense upon the issue of the moment.

Then unfolding the larger document, he said, "May it please your Honor, and you, Gentlemen of the Jury: The names of Oscar Colby, Edward Stone, and Hugh Fuller, here appear as witnesses to the last will and testament of the late Joseph Lee, bearing his characteristic signature, and seal, drawn up in the hand-writing of the said Oscar Colby, and bearing even date with the deed before referred to, to wit: – Crawford, October twenty-third, one thousand eight hundred and thirty-seven."

Here Joseph Lee in a frenzy of rage attempted to spring over his own box into that of his companion, and screamed out, as he met the iron railing, "Perjured wretch, you swore to me it was destroyed."

The sheriff rapped and thundered "order in court." Still he raved and swore like a maniac, and the sheriff could not control him.

Though he was heavily ironed, it required the full strength of several constables to keep him quiet.

Order being restored, Mr. Willard said, "I will here introduce two items of written testimony to rebut the charge of insanity against the author of the affidavit, the principal witness for the prosecution, and to confirm other testimony for the government already before the court. It was not known that these items existed, when we concluded the presentation of the case in behalf of the Commonwealth. I put in as written testimony, first, the last will and testament of Joseph Lee, deceased, which is as follows:

"'In the name of God, Amen. I, Joseph Lee Senior, of Crawford, in the County of – , Commonwealth of Massachusetts, gentleman, being on my sick bed, and in the near prospect of death, but of sound and disposing mind and memory, do make and publish this my last will and testament, hereby revoking a former will made by me, and signed and sealed on the fifth day of August, one thousand eight hundred and thirty-five.

First. I hereby constitute and appoint my beloved son-in-law, Allen Mansfield, to be sole executor of this my last will, directing him to pay all my just debts and funeral charges out of my personal estate, as soon after my decease, as shall by him be found convenient.

Second. I give and bequeath to my beloved daughter, Lucy Lee Mansfield, all the real estate of which I may die possessed.

Third. I give and bequeath to my faithful steward, Jacob Strong, and to my faithful house-keeper, Susan Burns, each the sum of one thousand dollars.

Fourth. I also give and bequeath to each of my faithful servants, Samuel Dane, Sarah Brown, and Maria Keys, the sum of five hundred dollars.

Fifth. I give and bequeath the sum of ten thousand dollars as a fund to the Pastor, Rev. Asa Munroe, and Deacon Simon Crocker, and Deacon Josiah Hanscomb, of the first Congregational church in this place, to be held in trust by them and their successors in office forever, subject to the advice of said church. The annual income thereof is to be by them expended for the relief of the poor, and for objects of charity; a preference being always given among the poor to those impoverished by intemperance; and among objects of charity to those more immediately under their observation.

Sixth. I give and bequeath all the residue of my personal property to my son-in-law, Allen Mansfield, Frank Lenox and John Marshall, and their successors whom they shall appoint, to be by them held in trust, and at their discretion used for the support, and personal comfort of my son, Joseph Lee, and to his heirs after him; or in the event of his death without legitimate offspring, the same shall after his decease revert to my daughter Lucy Lee Mansfield, her heirs and assigns forever.

In testimony whereof, I, the said Joseph Lee, have to this my last will and testament, set my hand and seal, this twenty-third day of October, in the year of our Lord one thousand eight hundred and thirty-seven.

Joseph Lee. [L. S.]

Signed, sealed, published, and declared by the said Joseph Lee, as and for his last will and testament, in the presence of us, who at his request, and in his presence, and in the presence of each other, have subscribed our names as witnesses hereto.

Oscar Colby,

Edward Stone,

Hugh Fuller.'"

After he had carefully folded the tattered document and replaced it in his pocket-book, Mr. Willard read the other item of documentary testimony, which proved to be this note of hand.

"For value received, I promise to pay Oscar Colby or order, five thousand dollars annually, on the first day of January, in each year, during the term of his natural life.

Signed, Joseph Lee."

Crawford, November 23, 1837.

On the back of this note were seven annual endorsements of five thousand dollars each; amounting to thirty-five thousand dollars.

Turning to the Judge, he then said, "May it please your Honor, and you, Gentlemen of the Jury, I am instructed by my colleague, the Attorney General, to submit the case in behalf of the Government without argument or comment. This we do from a conviction that after such disclosures, and this array of testimony, a closing argument would be not only a superfluity, but almost an insult to your understanding."

When he had resumed his seat, Mr. Burke for the defence arose, and said, "May it please your Honor, and you Gentlemen of the Jury, no persons can be taken by greater surprise at these remarkable disclosures, than the counsellors for the defence. And cordially concurring in the remarks of the learned counsel for the prosecution, we have concluded to follow his worthy example, and submit the case without argument, merely invoking for our clients as large a share of commiseration, as may consist with your sense of justice, and with the laws pertaining to their cause."

The Judge arose from the Bench, and in slow, and grave accents, commended the counsellors, both for the prosecution and the defence for the brief and direct manner in which they had mutually yielded the case to the court. "The same considerations," he added, "which have in their judgment superseded all demand for a closing argument, lead me, Gentlemen of the Jury, to feel that there can be no occasion for my giving you a prolonged charge. The nature of the crime for which the prisoners are arraigned and the penalties which it incurs, have been so properly and ably expounded to you by the counsellors as to supersede the necessity of additional comment thereon by the Bench. The trial has been protracted, and your minds must have been perplexed with doubts respecting the importance to be attached to the confession of Hugh Fuller until the introduction of the documentary testimony just submitted, which pours a flood of light upon the case, which of itself would seem sufficient to establish their guilt, and which, taken as a corroboration of the direct and circumstantial testimony previously before the court, amounts to an array of evidence seldom presented. If this evidence has convinced your judgment of the guilt of the prisoners, you will render your verdict accordingly."

The Jury retired, and after a few moments returned. The foreman arose and said, "We have made up our verdict."

By order of the court Joseph Lee was remanded to the prisoner's box to hear the verdict.

Clerk. "Do you find the prisoners guilty, or not guilty?"

Reply. "Guilty."

Judge. "The Court will postpone the proclamation of the sentence until the morning session."