University of Virginia Library

CHAPTER XVI.

MR. GILMER CLOSES FOR PROSECUTION.

When court reconvened on the afternoon of November 4th to hear
the closing speech for the prosecution by Mr. Gilmer, the same large
crowd which had heard Mr. Lee was present. After Judge Morris
had delivered his usual warning against demonstrations, there occurred
an incident which for a minute caused a great flutter of excitement.

Captain Woods arose, and with great dignity said: "I would like to
make one statement, in view of the attack on me, which may have been
so intended, and which sounded like an unjust attack. I desire to say
that I refused a large fee in this case to prosecute —."

At this point Messrs. Lee and Coleman both sprang to their feet, and
quick as lightning said: "We object, and we ask that this jury be now
discharged. We ask that an exception be noted to Captain Woods' statement,
and that now in view of it the jury be forthwith discharged."

Here Judge Morris promptly interposed, and turning to Captain
Woods said: "I don't think explanations are right in this case."

And here Messrs. Coleman and Lee were upon their feet again and
saying: "We make a motion that in view of the statement of Captain
Woods in the presence of this jury, that the jury and this prisoner be
discharged."

Captain Woods, who by now had recovered his composure, here said,
"And let it be entered that Mr. Woods does not desire to make any
further statement."

The stenographer had all the trouble he wanted in noting the colloquy,
the motion and the exceptions. Before the incident finally
closed Judge Morriss said to Messrs. Lee and Coleman, "I don't find
any trouble in overruling your motion for the discharge of the jury."

There can be no denying the fact that Mr. Lee's references earlier
in the day to Captain Woods were caustic, and that the latter must
have felt an irresistible impulse to make a stinging retort. Just what
he intended saying, nobody quite knows. Captain Woods was halted
almost before his auditors caught the drift of his remarks.

At the conclusion of this exciting incident, Commonwealth's Attorney
Gilmer arose and addressed the jury. He said:

"The same God that invested you with the power to decide this case
has made it my duty to say to you how the law and the evidence should
be considered. I say that the man who advises a wrong is worse than

he who commits it. You have been here nearly three weeks giving to
this case a most patient and careful consideration. The State is to be
congratulated upon having such a jury.

"I have known this man (the accused) for the past twenty years,
and I say to you that this is the most unpleasant duty of my life.

"I have never stood at this bar and asked the conviction of any man
I thought to be innocent, and I would scorn to withhold from any jury
any evidence that might be helpful to the accused.

"Practicing law is a plain business proposition, and there is no occasion
for any differences between attorneys. Before Captain Woods or
Captain Ker came into this case, they observed the amenities of the
profession. When Mr. Lee jumped into my associates in this case, it
was evident that he had a very weak case. The accused can rest content
that all that could be done in his behalf has been done.

"The life of the accused is dear to me as any life in this State,
but dearer than any one life is the peace and dignity of this Commonwealth.

"You must construe this evidence according to law. It is hard to
prove family dissensions. There is not that man living, no matter how
poor and humble, or how rich and influential, who does not have sufficient
pride to cancel, as far as possible, all evidences of family disagreement.
Each parent hopes that his children will do better than he
has done, and is too proud to cast obstacles in the way of their promotion.

"If you see a family which is so secretive when a member is dead,
what must have been their policy as to family disagreements? There
cannot be happiness in a home when a man comes back and finds his
wife ill, and who never inquires about her. Tell me that love dwells
there. I'd rather see my children grow up in rags than to see them
grow up in a household where the mother is allowed to suffer illness
without recognition from the husband.

"Deliver me from a dress parade love—from a love that shows itself
only at the theatre and in public places. I want no stronger evidence
of lack of love in the household than the fact that Sam McCue returned
to find his wife ill and did not greet her, but treated her with scorn,
when she asked where he had been.

"You can't put jealousy and love in the same heart. There must be
confidence and respect. The defense can't do what God himself has
not been able to accomplish. When a husband promises to protect
the woman who takes his name, he is responsible for her life when it
is taken in his presence. There is a wide difference between vice
and misfortune. God prints differences on each man's face.

"Mr. Lee has said that the evil that man does lives after him, and
the Bible says the sins of the father are visited upon the third and

fourth generations. Tell me that the good deeds of the dead are buried
with them? Tell me that in the great struggle for life you have never
touched elbows with another; that your father's good deeds are buried
with him.

"My God, how horrible would be that thought—how horrible would
be death. Where would you and I be to-day, but for the righteousness
of our mother? Tell me that the dead woman's life is buried with her;
that those little children will not be influenced by that mother? God
have mercy on that household where the love and good of the mother
is buried with her.

"I tell you that the greatest evil that man ever did to those children
was when he struck that blow to their mother. There is nothing on
earth which so makes my heart revolt. There is nothing which can
restore to those children the injury that their father has done them.

"Now, my friend, Mr. Lee said that if ever there was a time you
should watch yourselves, it is now. Gentlemen, you know that you
have to watch yourselves all the time. And he said there was a rule
of law that ninety-nine guilty had better escape than that one innocent
man should suffer. That is not the rule of law.

"Although the lawyers consumed nine hours in the delivery of their
speeches, not once did they mention the word `justice.' All I ask at
your hands is justice."

Great emphasis was laid by Mr. Gilmer upon this question of the
relations existing between the accused and his wife. He went over
the evidence of the Commonwealth, tending to show that the relations
were strained. By incident and illustration, he endeavored to lay
before the court and the jury the picture of a home swept by discord;
of a wife starving for the love she did not receive. He did not pretend
to say that there were not times when the two were on friendly terms.
On the contrary, he believed there were. In this connection, he referred
to the letters introduced in court, he called attention to the fact
that there were in the batch twenty-one letters from the wife and
only fourteen from the husband. He repeatedly referred to the fact
that the wife had to write one and one-half letters to get one from her
husband.

The testimony of the defense on this point was then taken up by
Mr. Gilmer. He declared that it amounted to nothing. The negro
butler evidently had eyes that did not want to see. The "handsome
lady from Staunton," Mrs. Hanger, had said that she saw nothing.

"Is it likely that the prisoner and his wife would have a fuss before
her? Probably the poor, dead woman, when she heard the Staunton
lady was coming, hunted up her pretty tidies, got out her handsome
china and cut-glass, and put the best foot forward. The witness, he

declared, was a woman who had never done wrong herself, and could
see no wrong in others."

"Take these letters," declared Mr. Gilmer in effect; "take these witnesses.
Admitting all they say, they prove only that at these specific
times these two people were on good terms; they cannot say anything
more. As for the letters, look at them; the woman writes about love
and the man about money. The tone of the latter is different; moreover,
every one, except one, was written in July, 1900. They referred
only to that particular time."

Mr. Gilmer said it was good law and good reason to hold the man
responsible for the safety of his wife. "When she married him he
took her from her father's house, and it was his duty to protect her.
If he did not, he had perpetrated a fraud upon her and upon her father,
and had lied to his God. For such a sin he should be punished.

"The jury," declared the speaker, "is not a `bump on a log.' It can
decide for itself. The handwriting of Almighty God upon the face of
McCue proclaimed him the murderer of his wife. He should be judged
not only for this, but for robbing his children of a mother's love and
guidance. Mercy is a different thing from justice. It was the province
of a court to hand out justice; the Governor alone was the dispenser
of mercy, where mercy was due.

"The learned counsel of the other side," continued the Commonwealth's
Attorney, "has told you that you will be criticised if you
acquit this prisoner. I know, gentlemen, you will do your duty, despite
the insinuating eloquence of lawyers. It is my duty to advise you and
instruct you in the law. I want justice. I get the same fee, whether
this man is acquitted or convicted.

"I have known the prisoner for years, gentlemen. He has been my
friend. I am here to protect him as much as I am to prosecute. I
have worked for months to find some extenuating circumstances, but I
have not been able to do so. I have prayed that his able and eloquent
representatives produce here something to establish his innocence beyond
a doubt. They have not done so; circumstances do not lie. I
am going to show you that it was this man who chased his wife to the
bath-room and then shot her down. He never had time to be unconscious.
The bloody marks upon his shirt and the various stories he
has given, prove his guilt. From Cain to Sam McCue, no murderer has
been able to hide his act. God wrote it there on the bloody shirt, in
the lack of time to be unconscious, and in the confused explanations
he made."

Before he concluded, Mr. Gilmer had something to say about the
effort of Mr. Lee to prove by the Bible that any number of men are
likely to draw different conclusions from the same thing. He recalled
to the jury the fact that only two of the apostles were present at

the crucifixion, and that their accounts of it were not written until
thirty years later; while some of the stories were fuller than others,
he said there was no contradiction, when they referred to the same
things.

Mr. Gilmer discussed the question of motive, and also from the viewpoint
of the Commonwealth, reviewed the testimony of Martin and
White concerning conversations in the jail. He declared that there
was proof positive that the husband and wife were on bad terms, and
proof positive that McCue had shot her down. He took up the instructions
and went through the entire list, discussing the more important
at length. Shortly before five o'clock, Mr. Gilmer announced that he
could not complete his speech in less than an hour. The court thereupon
ordered a recess until the following morning at 10 o'clock.

Mr. Gilmer, in resuming his argument the next morning, said:

"I am prepared to say at the outset that within an hour this case
will be with you. It has been said that the accused is a man of influence,
but that has nothing to do with the case. All men are equal
before the law.

"I lay down three propositions as to why you should bring in a verdict
of murder in the first degree:

"First—If he was not unconscious, he murdered his wife.

"Second—The bloody shirt.

"Third—The seven varying statements of the accused.

"At 9:13 o'clock Sunday night, September 4th, Mr. and Mrs. McCue
were at the gate of their residence. Later Mrs. McCue undressed,
put on her night robe. This must have taken at least ten minutes.
This would have put the time at about 9:23. No man could have
choked and beaten and murdered that woman in less than ten minutes.
And yet Dr. McCue had to be called on the 'phone, dress and walk
to Sam McCue's house all within the seven minutes. The accused
could not possibly have been unconscious. He did not have time to be
unconscious.

"It is a mathematical impossibility for Sam McCue to have been unconscious.
Not only that—it is a medical impossibility. The evidence
of Dr. C. S. Venable, Dr. J. E. Early and Dr. H. T. Nelson agree upon
this. It is backed up by the testimony of Judge Duke and every witness
who saw him that night.

"If it had been a robber, why did he go in where the husband was
when the light was burning; why take the time to set away the bat
after he had used it; why did he take time to place the gun so carefully
away unless it was to him a thing of value? Why did he leave
without taking one thing of value?

"It is absurd and ridiculous. But in addition, the burglar that you
hear so much about goes down stairs, raises several windows without

displacing the curtains, raises the windows without removing any
bolts or breaking any fastenings. You can't believe it—it is too unreasonable.

"The shirt is torn. Would the robber, think you, have had a tussle
with so strong a man as the accused. The torn shirt shows a woman's
hand."

Here Mr. Gilmer demonstrated that the statement of Mrs. Massie
about the sleeves of the accused being rolled up was true. He illustrated
it by measuring the sleeve on the arm of Deputy Sergeant Wood.
Mr. Gilmer knocked out the argument made by Mr. Sinclair on this
point. Mr. Gilmer used the bloody gown and bloody shirt in a dramatic
way to show that they pointed unmistakably to the guilt of the
accused.

"Just think of it, gentlemen," continued the lawyer; "the defense
contends that the injury was done with a sandbag. If that be true, the
robber would have been compelled to have used three different kind
of weapons in less than seven minutes. He has a bat, a sandbag, both
in his hand at the same time, and yet, not content with these weapons,
he must needs get the third—a gun.

"Although the neighbors are on the street, and the windows are all
raised, yet the only cry heard that night was the cry of a woman in
distress—a cry of a wife being brutally treated by him from whom
she had every right to expect help.

"When he saw the work of his hand, and saw the door of the penitentiary
staring him in the face, he then completed his dastardly work.
There is the motive.

"Although Dan Grady was armed with club and pistol, he called for
other help as he went to the house. Dr. F. C. McCue goes quietly to
the scene of the crime without once raising an alarm.

"If Sam McCue had not killed his wife, he would have gone to hunt
her body, not sent another. He would not have waited two days before
consenting to look upon her dead face."

Mr. Gilmer closed the case with a beautiful and touching peroration.
It was a pathetic appeal for justice. He said it was the saddest duty
of his life. He did not thank the jury for their attentive consideration
to what he had said. It was their duty, just as it was his duty to ask
conviction at their hands. No man needed any other reward than the
consciousness of duty well performed. "There are," said he, "two million
people in Virginia to-day awaiting your verdict as a vindication
of the law of this land."

His last words of appeal for conviction were spoken in a tremulous,
almost a tearful, whisper. The case was given to the jury at exactly
11:10 o'clock Saturday morning, November 5th, and five minutes later,
after the gallery had been cleared, the jury filed into their room and
the door closed behind them.