University of Virginia Library

CHAPTER XII.

MR. SINCLAIR SPEAKS FOR DEFENSE.

One of the largest crowds which assembled in the court-room during
the trial was that of the first night session, held on the evening of
November 2d, when Mr. G. B. Sinclair made the opening speech for
the defense.

After complimenting the jury on the patient consideration it had
given the case, Mr. Sinclair proceeded at once to the discussion of the
points involved.

Arguing from the viewpoint of the instructions, Mr. Sinclair pointed
out the law governing circumstantial evidence. He closely followed
the line laid down by the court, declaring that all circumstantial evidence
is insufficient when assuming all to be true, while the evidence
tends to prove some other reasonable hypothesis may still be true.

It is the actual exclusion of every other reasonable hypothesis which
interests men—circumstances with the face of truth. Although the
jury may believe from the evidence in the case that there is a strong
probability that the accused is guilty of the offense charged in the indictment,
still, if upon the whole evidence there is any other reasonable
hypothesis, consistent with his innocence, they cannot find the
accused guilty. And this is true, although it may appear from the
evidence that the probabilities of his guilt are greater than the probabilities
of his innocence.

Diverging from this line of argument, Mr. Sinclair declared that the
defense was prepared to prove that the Commonwealth, with all its
effort and all the money it has spent, has succeeded in establishing but
one indisputable fact—that on the night of September 4th Fannie
Crawford McCue, wife of the prisoner, was brutally murdered in her
own home. Beyond this, the Commonwealth had not gone.

"We are willing to admit," said Mr. Sinclair, "that there are circumstances
which point to Mr. McCue, but at the same time these circumstances
are entirely consistent with his innocence."

Proceeding, the attorney for the defense outlined the case of the
prosecution, declaring that it based its contention mainly upon three
points—the bad relations existing between the man and wife, the
conditions at the house pointing to the husband, and the contradictory
statements of the accused. The motive was found in the alleged bad

relations. Whether or not the Commonwealth had established this
motive, the jury would have to decide. Mr. Sinclair said, in passing,
that even bad relations did not presuppose murder, and that even a
blow was not always followed by a homicide.

The testimony of the Commonwealth was then taken up and discussed,
point by point, by Mr. Sinclair. The speaker ridiculed what
Captain Woods had called "straws"—the little incidents in the recent
life of McCue and his wife held to indicate the strained character of
the relations between the two.

Brand, Thomas, Stevens and many others came in for a few flings.
It was Ernest Crawford, however, that Mr. Sinclair gave the lion's
share of his attention. He made a terrific assault upon the young
man, and laughed at his testimony as a whole, laying particular emphasis
upon what he considered the absurdity of the statement that
a man of McCue's standing should "go down in the pasture lot," or
that a woman of Mrs. McCue's standing would in the presence of a
third person charge her husband with doing such a thing; in fact, Mr.
Sinclair said that the Commonwealth had utterly and ignominously
failed to besmirch the character of the accused.

"Not a breath nor a word has been brought against him," he declared.
"In spite of the announcement of the Commonwealth that all
ladies should stay away from a recent session, nothing was done, and
Mr. McCue's character stands here to-day immaculate and spotless as
ever. This investigation has served only to show how spotless and
immaculate it is. We must be fair, gentlemen—fair and honest."

For the next ten or fifteen minutes Mr. Sinclair devoted his attention
to the alleged bad relations existing between the accused and his
dead wife. He declared that here again the Commonwealth had failed.
The speaker cited first the letters of the man and wife, and then the
testimony of a half dozen or more witnesses, all of whom had declared
that they had never observed anything but the utmost cordiality between
the two. The attorney laid strong emphasis upon the life insurance
carried by the defendant for the benefit of his wife. This
insurance amounted to $70,000 or more, and Mr. Sinclair figured
roughly that it cost the money-loving McCue $2,500 a year or possibly
as much as $10 a day to maintain this insurance, "and yet," cried Mr.
Sinclair, "this is the man the Commonwealth claims was on bad terms
with his wife and actually killed her."

Reference was next made by Mr. Sinclair to the alleged conversation
in the jail between the prisoner and Mr. John S. White, in the course
of which Mr. McCue is said to have declared that for the past four or
five years his life had been a perfect hell; that "that woman is the
most jealous woman I have ever known."

The speaker analyzed this alleged conversation, and after calling

attention to the possibility of a misunderstanding, he quoted the instruction
of the court, declaring "that where evidence is adduced of
any statement of the accused, such statement must be considered as
a whole; a part of it cannot be considered and a part rejected; the jury
must consider all or none."

This quotation was given in connection with the statement of Mr.
White that throughout the conversation Mr. McCue had spoken respectfully
of his wife. After declaring again that the Commonwealth
had utterly failed to establish a motive, Mr. Sinclair began to touch
upon other features of the case. He referred to the happenings in the
McCue house on the night of the murder, and declared that nothing
there pointed to the prisoner as the murderer of his wife.

The Commonwealth, the attorney understood, was laying great
stress upon the varying statements of the accused in reference to the
murder. Mr. Sinclair admitted that their statements did vary or
rather that a series of witnesses have declared that the accounts were
different, but in all of these statements the defense lawyer saw the
one prominent distinguishing feature in that he (McCue) had been
attacked, and that his wife had probably been killed.

The variations were minor in their character, and might be accounted
for by the fallibility of human understanding. No two people
looked at the same thing with the same eyes; no two heard with
the same ears. What one took to mean one thing, another took to
mean something else. But suppose the prisoner, nervous and excited
though he was, had given to each the same story, what would have
been the effect? Would not the Commonwealth have declared at once
that he had a stereotyped lie ready for everybody? Would not every
action of McCue, whatever it was, be distorted and twisted entirely
beyond recognition.

"Gentlemen,"—said Mr. Sinclair, solemnly—"Gentlemen, there is
something behind this case—some mystery that we do not understand."

A rapid survey of the remaining points in the case was given by
Mr. Sinclair. He referred to the effort of the Commonwealth to discredit
the testimony of its own witness, Dr. Frank C. McCue, by declaring
that contrary to what he had said, he had reached the residence
several minutes before Grady and the police officers. The prosecution
in substantiating this point had referred to the written testimony
of Mr. Massie, who it was assured had said that he saw Dr.
McCue enter the house, and five or ten minutes later saw Grady go
in.

Mr. Sinclair picked up the record and read from the testimony of
Mr. Massie. The witness did say that he saw Mr. McCue enter the

house, but here is what followed: "Five or ten minutes later, I saw a
boy or lad run fast out of the lane."

Grady is anything but a boy or a lad, and he wasn't running out the
lane.

The bloody shirt received its full mead of attention. A rather dramatic
incident developed in this connection.

"The Commonwealth has spoken of fairness," said Mr. Sinclair.
"Let us have fairness then. I have nothing to say against Mr. Massie,
but the Commonwealth has laid great stress upon these statements of
Mrs. Massie, that when she first saw Mr. McCue on the night of the
murder, he had the sleeves of his shirt rolled above his elbows. The
Commonwealth, in other words, has tried to hint that it was a bloody
butcher who stood there, or that the sleeves had been rolled up to
conceal the blood and water on them, but what the Commonwealth
has failed to do is to indicate to the jury the length of the sleeves of
the shirt. Now look. Mr. Sinclair moved quickly forward and picked
up the shirt. He held the sleeve against his own. It came an inch or
two below the elbow. Allowing for the greatest muscularity of McCue
and for the loss of length in stretching, the sleeve would probably have
come to the elbow on the prisoner.

With reference to the scrap of gauze found in the bath-room, Mr.
Sinclair said it might or might not have been a piece of the shirt worn
by the accused. The gentlemen who had searched the room on the
night of the murder had failed to see it. The next day it had been
found lying upon the floor. But what of it? Suppose it had been there,
and suppose it was in reality a portion of the garment worn by McCue?
It was in evidence that the prisoner had visited the bath-room on the
night of the murder; that he had seen his dead wife lying upon the
floor; that inexpressibly shocked, he had exclaimed, "Oh, my God, my
darling wife!" and had then been led away by a lady.

At this time, according to the witness Grady, his shirt was torn,
and, in fact, a piece of it was hanging on by a mere shred. In conclusion
Mr. Sinclair touched upon other points, including the socalled
mysterious telephone message. Then he drifted into a lengthy discussion
of the nature of circumstantial evidence. He related cases in
which innocent men had been imprisoned and even hanged on such
evidence. He quoted the instructions of the court.

He referred to the argument of Captain Woods against the theory
of a burglary. He admitted that it sounded unusual, but crime, he said,
is never logical. It was certainly no less unreasonable to say that on
Sunday night, when his neighbors were passing his door, J. Samuel
McCue slew his own wife.

The attorney also recalled the statement of Dr. Nelson, that a man

knocked senseless from a blow with a soft weapon would probably
produce nausea and nose-bleeding, and then laid stress upon the fact
that when the accused was first seen on the stair he had one hand on
his head and one to his breast.

With reference to John Perry, he said that whatever the boy had
said to others, one word of positive evidence from him as one actually
present in the house at the time of the murder, was worth a ton of
circumstances. Then Mr. Sinclair invited the jury to a contemplation
of the positive statement of the negro boy.

The last words of Mr. Sinclair were a warning to the jury of the
responsibility resting upon them. He pictured the accused, surrounded
by his children—his boy, his pretty innocent girl—and pleaded in their
name that no mistake be made; that the jury move cautiously, carefully,
deliberately. He declared that if McCue had killed his wife, the
only thing that would have been left for him would have been a bullet
for his own brain.

The attorney called attention to the fact that there had been no
effort to escape, and also to the fact that McCue had worn the bloody
shirt in the presence of this entire crowd, and had then carelessly
tossed it in a clothes basket; that he had made no effort to conceal it
before the people came in. During the appeal tears streamed down
the cheeks of the accused, who held in his arms his sleeping boy. It
was nearly 11 o'clock when the session came to an end, and about two-thirds
of the original crowd was still in the room.

CAPT. RICHARD S. KER,
Who Assisted Commonwealth's Attorney in the Prosecution.