Page:The Green Bag (1889–1914), Volume 17.pdf/164

 THE TUCKER TRIAL

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upon the witness stand with his methods are only sufficient to cast suspicion on the and conclusions stamped as those of a real prisoner or to make it probable that he is expert. He had no theories to maintain ar- guilty, his counsel and the court as well gumentatively. He had observed and an never fail to point that out to the jury, alyzed the suspicious blood stains submitted with the result that convictions on circum to him, and came into court to tell just stantial evidence are not obtained unless the what he had seen and what he observed, and sole and necessary inference from the proved what that meant. His replies in cross- circumstances is the guilt of the accused. examination were just as responsive, clear The defence made a strenuous attempt and unevasive as those in his direct exami to have the knife and stickpin excluded nation, and called out a well-deserved trib from the case altogether. They based this ute to his fairness in the closing argument on the claim that the officers who found of the counsel for the defence. It was them, gained admittance to the house and pleasant also to observe that his former searched by virtue of a fraudulently ob pupil, Dr. Leary, who testified on the same tained search warrant for stolen property. question for the defence, had acquired his It was alleged that the police knew that the former instructor's habit of testifying im graphophone which was named in the partially, as well as his methods of careful search warrant, and which there was reason to believe had been stolen by Tucker, had and accurate observation. The evidence upon which the conviction been returned to the owner long before the was based was, as is usual in capital cases, search warrant was sworn out. The court of that character termed circumstantial. was not called upon to pass upon the ques It is not uncommon to hear attorneys even tion of the admissibility of the evidence so refer to such evidence as if it were of an obtained, for they found upon the evidence inferior nature and of less probative force presented to them upon this issue that the than so-called direct evidence. The writer search warrant was obtained in good faith, has made a careful investigation of the and that it was not used, but that the search Massachusetts records and has been able to was made with the permission and at the find no case that has come to light in recent invitation of the defendant's family. The defence contended that Tucker's years of a mistaken conviction by a jury based on circumstantial evidence, though story was true that he went no nearer the there have been several such cases where the Page house than Cutter's Corner and that evidence was direct. The most notable of he turned off from South Avenue at that these was one prosecuted by the present point and walked down West Newton Street. Attorney-General when district attorney. There was no controversy that Tucker was Two men were positively identified as mem on the Weston bridge as the noon factory bers of a gang of thieves; they did not whistles were blowing, and that he was at testify and were convicted. It developed a switch tower on the Boston and Albany later that they had been in a different part Railroad at ten minutes to one. The Gov of the state, but they did not testify because ernment contended that in that fifty min at the time specified they were actually utes he could have walked from the bridge to the Page house, and from the Page taking part in another burglary. The danger of a mistake in identity or house to the switch tower, and yet have of undetected perjury is always appreciable, been in the Page house from fourteen to yet a jury can hardly fail to accept the tes twenty minutes. timony of really or apparently honest wit The defendant called a witness, a laborer, nesses who appear to be sure of their state who testified that he saw Tucker on East ments. But if the proved circumstances Newton Street just after he had turned off