University of Virginia Library

CHAPTER V.

BEGINNING OF EVIDENCE.

Dr. Frank C. McCue, the prisoner's brother, was the first witness
put on the stand by the prosecution. Like most of the McCues he is
a handsome man. There is nothing sinister or unpleasant in his face;
his manners are quiet as become a gentleman, and he is much liked by
all who know him. He is thirty-one years old, and his residence is less
than three squares from the house in which the crime was committed.

The first information he had of the murder was about 9:15 o'clock,
September 4th. His wife and he had retired, when the 'phone bell rang.
Sam McCue said over the wire: "Come down here. Some one has
knocked me senseless and I think has murdered Fannie." Witness
got his pistol and his emergency grip. He went down Park Street
and went into Sam McCue's house, where he first saw the negro Perry
and the ex-mayor. Lights in the house were dim. The accused had on
trousers and undershirt and his cheek was bleeding. He appeared dazed
and could not give a good account of himself. He said: "Go on and
hunt for Fannie." Witness smelt the odor of powder and heard water
running in the bath-room. Thither he went and struck a light. Then
he saw the corpse of Fannie McCue lying in the tub with the water
running. Water was running so her gown was floating above her knees.
She was pulseless, her mouth partly open. Some one asked if she was
dead. Sam did the same thing. I said, "Yes." Then my brother said,
"Oh, my God; my darling wife!"

The picture thus drawn by Dr. McCue of the terrible scene in the
bath-room so moved the prisoner that he wept convulsively for a time.

Dr. McCue continued his evidence, describing the wounds and telling
of finding a window open in the room behind McCue's bed-room. The
parlor window was also open. Meanwhile several others including a
policeman, had arrived. Not until Mrs. McCue was laid on the bed did
Dr. McCue observe the gunshot wound. John Perry told him the gun
found was McCue's. The water running into the tub was warm. Sam
McCue seemed to be suffering greatly and the wound on his face was
bleeding. "When I went in the room, once or twice I heard some one
say, `What's that'; then I observed the discolored bat."

Mrs. McCue was between 45 and 48 years old. (She was 42.) She
had four children. Her weight was from 100 to 110 pounds. Her body
was warm when it was found.

Mrs. McCue's head, said witness, was above the water, which was up
to her shoulders. There was no flow of blood from the gunshot wound
and no discoloration from blood. The gown was also free of blood.
There was no manifestation of hemorrhage, no blood on the outside;
merely a little discoloration on the gown where the load entered.

The witness said Drs. Early and Venable made the examination, and
also searched portions of the house. "I was merely a spectator," said
he, "though I held a light for the examiners. Nothing was done with
the body until they came."

"When you found the gun and asked whose gun was it, where was the
accused?"

"I couldn't say. I think he was in his room."

In answer to a question, witness said:

"Just before we removed the body from the bath-room, he (Sam)
came into the room."

"But at the inquest you said he didn't go into the bath-room," remarked
Captain Woods.

"At that time it didn't come to my mind," explained the witness.

The witness was shown the base-ball bat found in the house. When
he first saw it Sam was lying down and the bat was leaning up against
the fireplace at the head of the sofa. "Some one said, `What's that bat
doing there?" I observed some discoloration near the end of the bat.
The bat was handed at once to some one representing the Commonwealth.
I think it was Cliff Rogers. "When I first saw the gun I observed
it to the right of the hall door leading into the bath-room.
The colored boy, John Perry, jerked back the magazine and the shell
dropped out."

"How long had John Perry been employed there?"

"I couldn't say; some time."

"I presume his room was the end room from the bath-room; a distance
of two or three feet. Perry was going towards the staircase
when I first saw him. Sam was coming towards me."

People quickly began to assemble at the house. Witness could not
say definitely how soon they got there.

"Where was the sofa on which your brother lay?"

"It was across the fireplace in the chamber."

"When you discovered the body and removed it to the rug of the
bath-room floor, and when you remarked that your brother was near,
did your brother come in?"

"He could see the body from where he was. He did not, to my
knowledge, touch it."

Questioned by Mr. Lee, for defense, witness said his brother 'phoned:
"Come down, Frank, right quick. Somebody has knocked me down,
and, I think, has shot Fannie.

"I stopped at no intervening house going to his house.

"I spoke to nobody. I went direct without pause. Arriving, I found
the front door ajar and went directly up stairs. Sam was on the stairway
near its head. I first saw John Perry between the front door and
the stairsteps. Saw brother's wound when I got in the hall, blood
was dripping to his undershirt. One hand was pressed to his head.
He never gave me any clear explanations.

"Sam came down the hall as we removed the body from the tub
and stood by the window facing the bath-room door. He said, on seeing
what we were doing, `Oh, my God! My darling wife.' Then he
dropped down helpless.

"Drs. Early, Venable and myself were down on our knees looking
for evidence. We were striking matches. The gas jet was lit, too.

"We saw no sign of any undershirt or piece of cloth," said witness
in response to Mr. Lee's questions.

"None of the three discovered any such thing. I was making a very
careful examination, as were the other doctors. Yes; I was on my
knees, too."

"The wound on Mrs. McCue's nose was a small contused wound;
not severe. Wound on side of right ear was only contused. It would
have produced insensibility, but how long a time I can't say."

Dr. McCue emphasized quite positively his statement first made
before the coroner's jury that his brother, Sam, was in a dazed condition
when he arrived at his house that Sunday night, and remained
so for two or three days.

"My brother," he said, "seemed to be suffering from general pain in
his head. Willie McCue was given some medicine to produce sleep.
Sam doesn't take medicine, but that night I offered to give him what
I thought was proper—a hypodermic of strychnine and morphia. He
refused. I wanted to quiet his nerves. Dr. Early was preparing his
hypodermic; I also took out mine. Sam said he thought he could
stand things without medical aid."

"When you reached the home of the accused what did he say?"

"He appeared to be dazed. I never was able to get any definite history
from him. He was dazed for several days afterwards. He just
hit me in the back and said, `Go hunt for Fannie.' He didn't indicate
whether she was alive or dead."

Dr. McCue testified to a bleeding wound on his brother's cheek,
which he saw when he entered the house.

"When I was called back by some one looking after Sam, I saw his
nose was bleeding. Blood was oozing from his nose; I saw it. After

any injury to the head we often look for bleeding from the nose. It
is one of the symptoms we carefully observe."

"My brother's wound showed a broken skin, considerable swelling,
discoloration and laceration of the flesh. I think it was made by a
blunt instrument, possibly a sandbag."

Mr. Lee asked what sort of a wound a sandbag blow would produce.

"It would knock one senseless, but it would have to be a right good
blow to produce that wound."

Dr. Hugh T. Nelson testified as follows: "I have been a practising
physician twenty-seven years and reside on High street. At ten minutes
after 10 o'clock Sunday night I heard that Sam McCue's house had
been burglarized and that both Mr. McCue and wife had been killed. I
went at once to the McCue house and saw Mr. McCue lying on a sofa.

"I asked him about the tragedy. He said, `It began in here.'

"Later I went to see the body of Mrs. McCue and soon after left the
house.

"I saw what seemed to be a scratch on Mr. McCue's right cheek
bone. The wound seemed to be very slight. It was like a child had
scraped his knee on the ground.

"My opinion is that a blow on the cheek to have produced unconsciousness
would have produced discoloration and a `puffing up.' Unless
done with the first, it would almost certainly have fractured the
jaw bone.

"McCue seemed to be worried, but perfectly rational."

The witness had seen a sandbag. He thought a blow with a sandbag
on the back of the head, if sufficient to cause unconsciousness,
must necessarily leave some evidence of the blow. It would probably
have caused some vomiting and would have a tendency to make the
pulse slow. There was nothing in Mr. McCue's manner or condition
which suggested to Dr. Nelson's mind that he had been knocked unconscious.

There was cross-questioning by Mr. Lee on the subject of sandbags,
sandbag wounds, etc., but without important results.

Dr. Charles S. Venable, son of the late distinguished professor of
mathematics in the University of Virginia, saw McCue about an hour
after the murder. He went with Dr. McCue to the bath-room. Much
blood was on the head of the tub. The little rug was saturated. Dr.
Venable said: "Dr. McCue, when I asked about the accused, said he
was doing pretty well. Dr. Browning, who also went in, spoke to Mr.
McCue and expressed his sympathy. I did the same thing. He said
he did not know how it happened; somebody had run in from Ruby's
room and grappled with him. Mr. Sam McCue asked the question, `Is
she dead?' Dr. McCue replied: `Yes, Sam, she is dead.' The accused
said, `My God.' I was surprised at the question and also that Mr. McCue
didn't know his wife was dead. I was also surprised at his expression—no

Diagram of 2nd floor of McCue's residence.

sign of emotion, grief or sorrow. There was no tremor
of his hand which I held. I saw a wound on his face. He was wiping
it with a handkerchief. It was oozing a little. It was in the form of
an abrasion—no bruise or swelling like that caused by a child skinning
its knee on bricks by falling down. It seemed to be the result of a
glancing blow. I examined the wound the next day—Monday—about
noon. I then made a careful examination. Then there was no swelling
or suffused blood. He had a pain at the back of the head. I
couldn't locate it."

Witness was asked if wound might have been caused by a sand-bag
blow. He said such a wound might be made without abrasion, but
swelling would have set in the next day.

"How could that cheek wound have been made?"

"I have most frequently seen it on foot-ball players who have been
scraped on the ground. The epidermis was scraped."

"Were there other injuries about the mouth or teeth?"

"We found none. A sandbag on the part of the face where Mr. McCue
was struck would have produced an enormous swelling by the
next day.

"I don't think the wound on McCue's face was such a one as would
indicate an injury sufficient to cause unconsciousness.

"J. Samuel McCue, on the day after the crime, was perfectly rational.
I saw no difference in his condition that night or next day—no
bleeding of the nose."

Dr. J. Emmett Early, who lives on Park street, a short distance from
the residence of J. Samuel McCue, has practiced medicine in Charlottesville
for ten years. He went to McCue's house, walked into the
chamber, saw the accused lying on the floor weeping with his face
down. He wanted to give McCue medicine. Then Dr. McCue came in
and said: "You take charge of William. I will take charge of Sam."
Witness gave William a hypodermic. Dr. McCue came up and said:
"Give this to Sam; he won't let me administer it." Accused meanwhile
had gotten on the sofa.

"Prisoner said: "Emmett Early, you or Frank can't give me a hypodermic.
I don't want it. I have never taken any morphine."

Witness added: "McCue's tone was commanding. Then I desisted.
I had no conversation with the accused that night. I saw Judge Duke,
among others, and was asked to serve on the coroner's jury. When I
said I would rather not, I was asked to examine the body.

"When I first saw McCue I didn't notice any wound. Later I saw
him wiping his cheek. There was a slight abrasion on the right cheek.
I examined the wound the next day. There was a slight abrasion,
like a foot-ball man, like a boy falling and hurting his knee in the
sand. No contusion on his head. I opened the hair and examined the
scalp. I made this examination Monday. Can't say whether it was

morning or afternoon. There was very little swelling; no bruise, no
discoloration whatever. The prisoner's wound could not have produced
insensibility." Next day Dr. Early saw no signs of a blow on the
head. A sand-bag blow, according to witness, would have left some
mark, some contusion, no matter what the instrument used. Witness
did not see McCue's nose bleeding when he reached the house on the
night of the murder. Wound on Sam McCue's face could not have been
produced by the base-ball bat. Witness said a cheek blow, which would
have produced insensibility, would have left discoloration, swelling, and
contusion. The accused had the least little swelling on the cheek the
day after the murder.

By Captain Woods: "If a man were struck on the hairy part of the
head with a sand-bag, would a blow causing insensibility leave evidence
of itself on the head?"

"It would produce some evidence—swelling and discoloration of the
blood."

Questioned by a juror, witness said the accused looked as usual, mentally,
on the night of the crime and the day after. His mind was clear.
He was in great grief when witness first arrived; recovered himself
later, however.

The physicians described quite fully the wounds on the body of Mrs.
McCue, and their statements are similar, except that Dr. Early saw
slight evidences, on Sunday night, that the victim had been choked,
while Dr. McCue observed no finger marks about the throat.

Dr. Venable said the lace on the gown had been torn off. The right
ear had been struck a downward blow by a blunt instrument. The ear
was very much discolored; had bled very freely. The next wound was
a small lacerated wound on the nose; no bones broken, much blood. The
third wound was a small transverse wound on the back of the head,
but it gave out little blood. "I concluded," said the doctor, "that that
wound happened afterwards. I believe it would be produced by falling
with her head back and hitting the bath tub. We also examined the
rest of the body. Then we came to the gunshot wound. There were
powder marks right in the wound; it was black. The shot had gone
downward and backward and tore all to pieces several ribs. Leather
wad was taken from the spinal column. There was a great deal of disorganized
blood in the cavity. We turned the corpse over, which
caused blood to pour out. Next day I found a finger nail broken; also
finger marks on her neck. Think they were produced before death."

Captain Woods here asked the witness' opinion as to when the gunshot
wound was inflicted. The defense's objection was sustained. Captain
Woods then asked would it have been possible for Mrs. McCue,
after having been shot, to go into the tub herself and place herself in
the position described.

"I don't think so."

Dr. Early examined the body casually Sunday night, and more carefully
the next day. Monday's examination plainly revealed finger marks
on the neck—a left-hand grip—impressions of four fingers, which seemed
to have slipped. "I noticed the same thing Sunday night," added witness,
"but the marks were slight then. Next day they were very noticeable."

The physician said that death from a gunshot wound like Mrs. McCue's
would result almost instantaneously. The person would drop in
his tracks after receiving such an injury. The gun must have been two
feet from the body when fired. The wound on the ear might have been
produced by an instrument like the base-ball bat in evidence.

The bloody gown worn by Mrs. McCue on the night of the fatal 4th
of September was frequently exhibited in court and identified by various
witnesses. It had an important part in the gruesomely spectacular part
of the trial, but it was not so much a key to any mystery of that night's
tragedy as the bloody undershirt worn by the accused. That it was
bloody was beyond denial, but whence came the blood—and at what
crisis—was very much in question. Dr. McCue was asked how his
brother was dressed when he reached the house.

"Sam McCue," said the witness, "wore an undershirt, pants and slippers
when he first saw him."

"What became of that undershirt?" asked Captain Woods.

"It was taken from my brother during the time the last examination
was being made."

Here witness was shown the shirt. He thought it was the one Sam
McCue wore.

Mr. Gilmer, Commonwealth's Attorney, had asked witness to get the
shirt that night. Witness found the shirt in a clothes basket. Couldn't
remember whether he asked accused where it was, but certainly asked
somebody. Witness got the shirt from the prisoner's room, as well as
he remembered; gave it to Undertaker Biery with other bloody garments.
There was some evidence of hemorrhage on the shirt. Witness
didn't observe the garment closely. "The blood, I presume," he said,
"was coming from my brother's face. I actually saw it bleeding."

"The undertaker came into the room after the examining physician
had made their examination.

"The shirt was taken off the last thing at night, just as the undertakers
were getting ready to leave the house," added the witness.

"When I found the shirt it was mixed in with the clothes in the regular
clothes basket. Some one certainly told me it was there. There
was no effort to conceal it; absolutely nothing of the kind."

"Was the shirt so torn as to render it improper for him to go before
the ladies?"

"If he had been in his natural condition he would not have done it,
and later he put on another shirt, a neglige shirt."

Dr. Venable took the undershirt, and at Mr. Lee's request described
each of the "washed" spots separately. He did this so the court stenographers
could record his testimony with absolute accuracy. Next he
gave the location and number of the "unwashed" spots. The accused,
during the taking of this evidence, watched the witness intently, though
his gaze frequently shifted towards the galleries. It seems to this
writer that the prisoner has changed remarkably since this morning;
that his face now shows intense anxiety. His eyes, though they have
lost none of their steely glitter, are red around their rims and begin to
grow hollow.

Dr. Venable found eight "washed" spots and eleven spots which had
not come in contact with water. He and Mr. Lee together held the undershirt
up before the jury. Mr. Lee called the attention of witness to
the fact that some of the "washed" spots were in close proximity to
those which he said were "unwashed." Witness admitted this. One
spot Dr. Venable could not speak definitely about; that is to say, he
could not tell whether it had been washed or not.

Dr. Venable said that certain bloody portions of the shirt evidently
had been wet. They looked as if they had been washed out. One or
two spots seemed not to have been washed. Certain faded stains, however,
evidently had been wet.

In answer to a question from the defense, the Doctor said he did not
mean that the undershirt had been scrubbed, simply that it had come in
contact with water.

Dr. Early, while on the stand, was shown the bloody undershirt worn
by McCue on the night of the crime. He had first seen the garment at
the coroner's inquest. Dr. Early said that the stains were due to blood.
He was here asked to point out the discolorations which had been moistened
by water. Both sleeves seem to have been wet at the wristbands,
said the physician.

The dampness from water seems to have extended all around the
stains. Witness here took the shirt and pointed out the various stains
to the jury. He thought very few had been discolored by water.

The theory of the defense was that the shirt was stained as a result
of being handled by persons whose hands were bloody, and also of being
wrapped with other garments and cloths that had been saturated with
blood and bloody water. Mr. Marshall Dinwiddie testified that he had
received the shirt from Dr. McCue just after he had been helping the
embalmer. "We had not then washed our hands," he said. "I handed
the shirt to Undertaker Biery. He rolled it up. He had not then
washed his hands."

Mr. Biery testified that he had finished embalming the body when
the shirt was handed him, but was not through with moving it around.
The stenographer who took his testimony before the coroner's inquest
said Mr. Biery had said he had not finished embalming when the shirt
was handed to him. Mr. Biery was positive that he wrapped up the
shirt entirely separate from other garments.

There was one distinct mark on the back of the shirt which seemed
to have been made by the fall of a drop of blood, and which could not
have been made by coming into contact either with bloody hands or
other bloody clothing.

One of the links in the chain of evidence was a piece of goods found
under the bath-tub, behind the door, on Monday while the coroner's inquest
was being held in the McCue residence. It was stained with
blood, and was alleged to have been torn from the undershirt worn by
the accused that night. Mr. Durrette took the fragment to the coroner
and told how and where it had been found. To the court he stated, in
answer to questions by Mr. Lee, that the position of the scrap was such
that he certainly would have seen it in the room had he gone there on
the night of the crime. But his deposition before the coroner's inquest
said otherwise, and indicated that the cloth was in an obscure part of
the room.

All of the physicians testified that they had examined the bath-room
that Sunday night for evidence, but they did not find the cloth. This
fact the defense regarded as significant.

Dr. Early went into the bath-room with Dr. Venable. Does not remember
whether door was closed or not. They had candles and matches.
Witness didn't examine thoroughly under the tub, and didn't see a "little
piece of cloth on the floor." Didn't know whether he would have seen
it or not had it been there. His examination was not thorough. Dr.
Early said the candle was held over the tub. Witness wouldn't say the
room door was shut, though Mr. Lee pressed him hard on this point.
He did say, however, that if any one had knelt down in the bath-room
Sunday night after the crime his trousers would have been dampened
by the water on the floor.

Dr. Venable was of opinion that matches were struck while the examination
was being made in the second examination of the bath-room.
The examination was made for the purpose of getting evidence. Witness
personally did not look under the tub. He couldn't say that Dr.
McCue did not. Witness saw no piece of undershirt in the room. He
didn't know whether he would have seen such a thing or not had he
been there.

Mr. Lee sought to induce witness to admit that had a bloody piece of
cloth been in the room he (Dr. Venable) would have seen it. Witness
said his search was not a scrutinizing one.

In some places he and his companions glanced around but casually.

Before allowing Drs. Venable and Early to stand aside, Mr. Lee, of
the defense, drew their attention to discrepancies between the testimony
they had given at the coroner's inquest and that now submitted to the
jury.

Mr. Lee: "Didn't you say at the inquest that Mrs. McCue might have
stepped over into the tub?"

"I don't think I did," replied Dr. Venable. "If I did it is against my
judgment at present."

Mr. Lee here read part of Dr. Venable's evidence at the inquest, which
showed that the physician in court had a slightly different recollection
of the matter from what he formerly had.

Dr. Venable was of opinion that a sand-bag blow would produce a
swelling, though he admitted he had never seen a sand-bag wound. He
said he didn't think a sand-bag blow would leave much sign of external
injury. He thought, however, it would leave a swelling. The Doctor
said the nail on the left hand of Mrs. McCue—the tip of it—was broken
and turned back.

Mr. Lee read some of Dr. Early's evidence at the inquest, wherein the
Doctor had expressed the opinion that the accused must have been hit
with a sand-bag. Witness admitted that he used the language quoted
and the word "sand-bag." Dr. Early here said he had reconsidered the
matter. Whatever he testified to at the inquest, Dr. Early said, he was
of a different opinion now.