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[4498] THE COURT'S CHARGE
TRENCHARD, J.
Ladies and gentlemen of the jury:
The prisoner at the bar, Bruno Richard Hauptmann, stands charged in
this indictment with the murder of Charles A. Lindbergh, Jr., at the Township
of East Amwell in this County on the first day of March, 1932.
It now becomes your duty to render a verdict upon the question of his
guilt or his innocence and upon the degree of his guilt, if guilty. In doing
this you must be guided by the principles of law bearing upon the case that I
will now proceed to lay before you.
In the determination of all questions of fact, the sole responsibility
is with the jury. You are the sole judges of the evidence, of the weight of the
evidence, and of the credibility of the witnesses. Any comments that I may make
upon the evidence will be made, not for the purpose of controlling you in your
view of the facts, but only to aid you in applying the principles of law to the
facts as you may find them. You must not consider what I shall say concerning
the evidence as being accurate, but you must depend upon your own recollection.
You must not only consider the evidence to which I shall refer, but you [4499] must
consider all of the evidence in the case.
In this, as in every criminal case, the defendant is presumed to be
innocent, which presumption continues until he is proved to be guilty.
To support the indictment and to justify a conviction, the State must
prove the facts sufficient for that purpose by evidence beyond a reasonable
doubt; and that burden never shifts from the State. If there be reasonable
doubt whether the defendant be guilty, he is to be declared not guilty.
Reasonable doubt is a term often used, probably pretty well
understood, but not easily defined. It is not a mere possible doubt, because
everything relating to human affairs and depending on moral evidence is open to
some possible or imaginary doubt. It is that state of the case which, after the
entire comparison and consideration of all of the evidence, leaves the minds of
the jurors in that condition that they cannot say that they feel an abiding conviction
to a moral certainty of the truth of the charge. The evidence must establish
the truth of the fact to a moral certainty, a certainty that convinces and
directs the understanding and satisfies the reason and judgment of those who
are bound to act conscientiously upon it.
But if, after canvassing carefully the evidence, giving the accused
the benefit of reasonable doubt, you are led to the conclusion that the
defendant is guilty, you should so declare by your verdict.
To make out a case of guilt, the State must establish by evidence
beyond a rea- [4500] sonable doubt, first, the death of Charles A. Lindbergh,
Jr., as a result of a felonious stroke inflicted on the first day of March,
1932, at the Township of East Amwell in this County.
To support that charge the State has produced evidence to the
following effect. The fact of death seems to be proved, and admitted. At the
time of his death the child was about twenty months old. On the evening of
March 1st, 1932, the child was prepared for bed by its mother and its nurse,
Betty Gow, at the Lindbergh home in East Amwell Township in this County.
The evidence is to the effect that the child was then in good health,
a normal child except for a slight cold; that the mother and the nurse securely
fixed the covering about the child, and about eight o'clock left the room and
closed the window; that between that hour and ten o'clock the child was removed
from the bed by some person and carried away, with the clothing in which it had
been put to bed, which clothing has been described to you.
There is evidence from which you may conclude, if you see fit, that
the person who carried away the child entered the nursery or child's bedroom
through the southeast window of the nursery room, by means of a ladder placed
against the side of the house, under or near the window, and that this occurred
shortly after nine o'clock at night.
You will recall the evidence of Colonel Lindbergh to the effect that,
as he was sitting in his living room downstairs, he heard a strange noise about
that time, the sound [4501] of wood on wood, like the striking of two pieces of
wood together, like the boards of a crate falling together off of a stand or
chair.
Colonel Lindbergh testified that he could not tell at the time where
the sound came from, and at the moment he did not think much about it. Later,
at about ten o'clock, when the disappearance of the child became known, a
strange and broken ladder was found, about sixty or seventy feet from the south
east window, with indications that it had been used in entering and leaving the
window; and also there were the imprints of a man's shoe in the soft ground
under or near the window.
Miss Gow and Mrs. Whateley testified that later, about April 1, 1932,
they found the thumbguard, which Miss Gow had securely tied to the wrist of the
child's sleeping suit when she put him to bed, that they found this thumbguard
in the road leading from the Lindbergh home and on the Lindbergh property, with
the knot still untied, from which you may possibly conclude that the sleeping
suit was stripped off of the child at that place.
There is also evidence to the effect that there was a dirty smudge on
the bed clothes, and also on the floor of the nursery, leading from the window
to the child's crib, and a ransom letter left on the window sill. Later, the
child's dead and decomposed body was found by a colored man in or hard by a
shallow grave, not far from the road, a few miles away, in Mercer County.
Dr. Mitchell, who performed the autopsy, [4502] testified that the
child died of a fractured skull, the result of external violence, that the
fracture extended from a point about an inch and a half posterior to the left,
it extended forward probably three or four inches, it extended upward to one of
the fontanels, it extended backward around the back of the head; in other
words, it was a very extensive fracture.
He further testified that, in his opinion, death occurred either
instantaneous or within a very few minutes following the actual fractural
occurrence. It is the contention of the State that the fracture described by
Dr. Mitchell was inflicted upon the child when it was seized and carried out of
the nursery window down the ladder and when the ladder broke.
Now, the ladder has been placed in evidence. Its broken condition when
found in the yard has been described to you.
The fact that the child's body was found in Mercer County raises a
presumption that the death occurred there; but that, of course, is a rebuttable
presumption, and may be overcome by circumstantial evidence. In the present
case the State contends that the uncontradicted evidence of Colonel Lindbergh
and Dr. Mitchell and other evidence, justifies the reasonable inference that
the felonious stroke occurred in East Amwell Township in Hunterdon County, when
the child was seized and carried out of the nursery window and down the ladder
by the defendant, and that death was instantaneous; and from the evidence you
may conclude, if you see fit, that the child was feloniously stricken on [4503]
the 1st day of March, 1932, at the Township of East Amwell in this county, and
died as a result of that stroke.
Secondly, the State, in order to justify a verdict of guilty, must
establish by the evidence, beyond a reasonable doubt, that the death was caused
by the act of the defendant. The uncontradicted evidence is that the child was
left by the mother and the nurse in the nursery, and the window was then
closed.
The evidence justifies the inference, if you see fit to draw it, that
the window was maliciously opened and the child seized shortly after nine
o'clock that night. You will, of course, recall the evidence to the effect that
almost immediately after it was discovered that the child had been taken from
its crib in the nursery, there was found the ransom letter, demanding fifty
thousand dollars, on the window sill, on which was placed a peculiar symbol and
peculiar punch holes, and stating that directions would later be given for the
delivery of the money. There is also evidence to the effect that a few days
later Colonel Lindbergh received a second letter with like symbols, referring
to the original ransom letter, and reiterating that directions for the delivery
of the ransom money would be given. Meanwhile, Colonel Breckinridge, the friend
and counsellor of Colonel Lindbergh, had identified himself with the case in an
endeavor to help his friend.
There is evidence to the effect that a few days before March 9, 1932,
Dr. Condon had inserted an advertisement in The Bronx [4504] newspaper in
effect offering to act as a go-between; that a few days later Dr. Condon received
a letter in effect accepting his offer to act as a go-between, and enclosing a
letter to Colonel Lindbergh, telling Dr. Condon that after he got the money to
put words in the New York American that the money is ready, and the letter to
Colonel Lindbergh said Condon may act as go-between, to give him the money,
with directions as to the package; and how thereafter the baby was to be found.
This letter to Colonel Lindbergh, as I recall the testimony, contained
the peculiar symbols of the original ransom letter. The evidence is to the
effect that immediately Dr. Condon drove to Hopewell and conferred with Colonel
Lindbergh and with Colonel Breckinridge and, with their acquiescence, he
inserted the advertisement, "I accept; money is ready."
Dr. Condon testified that shortly thereafter he received a letter
addressed to him, and delivered to him by a taxicab driver, giving him
instructions how to proceed. The taxicab driver testified that he was given
that letter by the defendant Hauptmann. Dr. Condon testified that, as a result
of the directions contained in that letter and another letter, he first had, on
March 12th, 1932, an interview in Woodlawn Cemetery with a man whom he
identifies as the defendant, after talking with him for more than an hour. In
that interview Dr. Condon said that the defendant, after having run away from
the gate, said, among other things, "It is too dangerous. Might be 20 year
or burn. Would I burn if the [4505] baby is dead? I am only a go-between."
Dr. Condon also testified in effect that the defendant said that the
baby was being held on a boat by others, that "We are the right
parties," that the baby was held in the crib by safety pins, and he said
that he would send the sleeping suit. Dr. Condon further testified that later
he received the sleeping suit, and other letters containing further directions,
and finally a letter directing that the money be ready by Saturday night and to
put an advertisement in the newspaper, "Everything O. K." and that
these directions were complied with by him, Condon, with the acquiescence of
Colonel Lindbergh and Colonel Breckinridge, the latter of whom had been in
close touch with Dr. Condon during practically the whole of the ransom negotiations.
There is testimony to the effect that on this Saturday night, April 2,
1932, there was delivered to Dr. Condon's residence a letter containing further
instructions, and that as a result thereof on that evening Colonel Lindbergh,
who was there waiting, drove Dr. Condon to the entrance to St. Raymond's
Cemetery with the ransom money; that Dr. Condon alighted and contacted with a
man, and after some talk and some delay handed him the package containing fifty
thousand dollars of ransom money, thirty-five thousand dollars of which was in
gold certificates, the numbers of which bills had been taken.
It is argued that Dr. Condon's testimony is inherently improbable and
should be in part rejected by you, but you will observe [4506] that his
testimony is corroborated in large part by several witnesses whose credibility
has not been impeached in any manner whatsoever.
Of course, if there is in the minds of the jury a reasonable doubt as
to the truth of any testimony, such testimony should be rejected but, upon the
whole, is there any doubt in your mind as to the reliability of Dr. Condon's
testimony? There is evidence to the effect that after Dr. Condon alighted with
the money he was hailed by a man on the other side of the hedge, to whom he
finally delivered the ransom money.
Colonel Lindbergh testified that the voice that hailed Condon was that
of the defendant. Dr. Condon testified that the man to whom he delivered the
money was the defendant. This is denied by the defendant, and there is other
testimony bearing upon the matter, and so that question becomes one for your
determination.
It is argued that Colonel Lindbergh could not have identified that
voice, and that it is unlikely that the defendant would have talked with
Condon. Well, those questions are for the determination of this jury, after
having patiently listened to the evidence bearing upon those topics. If you
find that the defendant was the man to whom the ransom money was delivered, as
a result of the directions in the ransom notes, bearing symbols like those on
the original ransom note, the question is pertinent: Was not the defendant the
man who left the ransom note on the window sill of the nurs- [4507] ery, and
who took the child from its crib, after opening the closed window?
It is argued by defendant's counsel that the kidnaping and murder was
done by a gang, and not by the defendant, and that the defendant was in nowise
concerned therein. The argument was to the effect that it was done by a gang,
with the help or connivance of some one or more servants of the Lindbergh or
Morrow households.
Now do you believe that? Is there any evidence in this case whatsoever
to support any such conclusion?
A very important question in the case is, Did the defendant Hauptmann
write the original ransom note found on the window sill, and the other ransom
notes which followed? Numerous experts in handwriting have testified, after
exhaustive examination of the ransom letters, and comparison with genuine
writings of the defendant, that the defendant Hauptmann wrote every one of the
ransom notes, and Mr. Osborn, Senior, said that that conclusion was
irresistible, unanswerable and overwhelming. On the other hand, the defendant
denies that he wrote them, and a handwriting expert, called by him, so
testified. And so the fact becomes one for your determination. The weight of
the evidence to prove the genuineness of handwriting is wholly for the jury.
As bearing upon the question whether or not the defendant was the man
to whom was paid the ransom money in the cemetery, you will, of course,
consider the evidence to the effect that the defendant had written the address
and telephone number of Dr. Condon on the door jamb of his [4508] closet; and
if you believe that he did, although he now denies it, you may conclude that it
throws light upon the question whether or not he was dealing with Dr. Condon.
As I have said, the defendant denies that he was the man who was paid
the ransom money, and there is other testimony which, if credible and believed
by you, supports his statement.
You will consider, as bearing upon that question, the fact that a
record of the serial numbers of the ransom money was retained. Now, does it not
appear that many of the ransom bills were traced to the possession of the
defendant? Does it not appear that many thousands of dollars of ransom bills
were found in his garage, hidden in the walls or under the floor, that others
were found on his person when he was arrested, and others passed by him from
time to time?
You may also consider in this connection the evidence to the effect
that shortly after the delivery of the ransom money the defendant began to
purchase stocks in a much larger way and to spend money more freely than he had
before.
The defendant says that these ransom bills, moneys, were left with him
by one Fisch, a man now dead. Do you believe that?
He says that he found them in a shoe box which had been reposing on
the top shelf of his closet several months after the box had been left with
him, and that he then, without telling anybody, secretly hid them, or most of
them, in the garage, where they [4509] were found by the police. Do you believe
his testimony that the money was left with him in a shoe box, and that it
rested on the top shelf in his closet for several months?
His wife, as I recall it, said that she never saw the box; and I do
not recall that any witness excepting the defendant testified that they ever
saw the shoe box there.
As bearing upon the question whether or not the defendant was the man
who took the child and left the ransom letter on the window sill, you should,
of course, consider the evidence with respect to the ladder, if you find, as
seems likely, that it was used in reaching the nursery. That the ladder was
there seems to be unquestioned. If it was not there for the purpose of reaching
that nursery window, for what purpose was it there? There is evidence from
which you may conclude, if you see fit, that the defendant built the ladder,
although he denies it. Does not the evidence satisfy you that at least a part
of the wood from which the ladder was built came out of the flooring of the
attic of the defendant?
In this connection you should consider the marks upon the wood, and
give the evidence in respect thereto such weight as you think it entitled to,
after a consideration of the credibility of the witnesses who testified in
respect thereto.
The defendant has offered himself as a witness in his own behalf, and
the law makes him a competent witness, notwithstanding his very deep interest
in the event of the trial. His evidence is not to be rejected merely for the
reason that he is [4510] interested, but his interest in the result may be
taken into consideration by you as an important circumstance upon the question
of his credibility, the question whether he is telling the truth. You should
also consider his testimony in view of its inherent probability or
improbability, in the light of all of the facts and circumstances as disclosed
by the evidence. It appeared on the examination of the defendant here in court
that he has been heretofore convicted of crime. That testimony may be given consideration
by you as affecting his credit as a witness, and for that purpose only. The
defendant denies that he was ever on the Lindbergh premises, denies that he was
present at the time that the child was seized and carried away. He testifies
that he was in New York at that time. He denies that he received the ransom
money in the cemetery and says that he was at his home at that time on the
evening of April 2, 1932.
This mode of meeting a charge of crime is commonly called setting up
an alibi. It is not looked upon with any disfavor in the law, for, whatever
evidence tends to prove that the defendant was elsewhere at the time the crime
was committed, at the same time tends to contradict the fact that the crime was
committed by the defendant, where as here, the presence of the defendant is
essential to guilt, and if a reasonable doubt of guilt is raised, even by
inconclusive evidence of an alibi, the defendant is entitled to the benefit of
that doubt.
As bearing upon the question of whether or not the defendant was
present at the [4511] Lindbergh home on March 1st, 1932, you, of course, should
consider the testimony of Mr. Hochmuth, along with that of other witnesses. Mr.
Hochmuth lives at or about the entrance of the lane that goes up to the
Lindbergh house.
He testified that on the forenoon of that day, March 1st, 1932, he saw
the defendant at that point, driving rapidly from the direction of Hopewell;
that he got in the ditch or dangerously near the ditch, and that he had a
ladder in the car, which car was a dirty green. This testimony, if true, is
highly significant. Do you think that there is any reason, upon the whole, to
doubt the truth of the old man's testimony? May he not have well and easily
remembered the circumstance, in view of the fact that that very night the child
was carried away? The defendant, as I have said, denies that he was there or
ever in the neighborhood; but, as bearing upon that question, you should
consider the testimony of other witnesses, that the defendant was seen in the
neighborhood, not long before March 1st, 1932, and give it such weight as you
think it is entitled to, after considering the credibility of the witnesses, as
disclosed by the evidence.
The defendant has produced some testimony besides his own, that he was
in New York on the day and evening of March 1st, 1932, and some testimony
besides his own, that on the evening of April 2nd, 1932, when the ransom money
was delivered, he was at his home.
This testimony produced by the defendant I shall not attempt to recite
in greater [4512] detail. It should be given consideration by you and given
such weight as you think it is entitled to, after considering it in connection
with all of the other evidence in the case, bearing upon these questions and
all other questions in the case, determination of which would tend to throw
light upon the case.
You should consider the fact, where it is the fact, that several of
the witnesses have been convicted of crime, and to determine whether or not
their credibility has been affected thereby; and where it appears that
witnesses have made contradictory statements, you should consider that fact and
determine their credibility as affected thereby.
The evidence produced by the State is largely circumstantial in
character. In order to justify the conviction of the defendant upon
circumstantial evidence, it is necessary not only that all of the circumstances
concur to show that he committed the crime charged, but that they are inconsistent
with any other rational conclusion.
It is not sufficient that the circumstances proved coincide with,
account for and therefore render probable the hypothesis that is sought to be
established by the prosecution. They must exclude to a moral certainty every
other hypothesis but the single one of guilt, and if they do not do this, the
jury should find the defendant not guilty.
And when the case against the defendant is made up wholly of a chain
of circumstances, and there is reasonable doubt as [4513] to any fact, the
existence of which is essential to establish guilt, the defendant should be
acquitted.
But the crime of murder is not one which is always committed in the
presence of witnesses, and if not so committed, it must be established by circumstantial
evidence or not at all.
And where the essential facts and circumstances are proved, which
cannot be explained upon any other theory than that the defendant is guilty of
the crime charged against him, such evidence should be considered as satisfactory
and convincing as that of the most direct and positive character.
If the State has not satisfied you by evidence beyond a reasonable
doubt that the death of the child was caused by the act of the defendant, he
must be acquitted.
But if, on the other hand, the State has satisfied you beyond a
reasonable doubt that the child's death was caused by the unlawful and,
criminal act of the defendant while seizing, stealing and carrying away the
child and its clothing, of which unlawful act against the peace of the State,
the probable consequences might be bloodshed, it is murder; and if murder, the
degree thereof must then be determined.
Now, our statute declares, among other things: Murder, which shall be
committed in perpetrating, or attempting to perpetrate any burglary, shall be
murder in the first degree.
The State contends that the murder in this case was committed in
perpetrating a burglary, and is murder in the first degree. [4514] I charge you
that if murder was committed in perpetrating a burglary, it is murder in the
first degree, without reference to the question whether such killing was willful
or unintentional; and I further charge you, as requested by the defendant, that
in order to convict this defendant you must be satisfied, beyond a reasonable
doubt, that the death of the child ensued from committing, or attempting to commit,
burglary, at or about the time and place in question.
Our statute relating to burglary says:
Any person who
shall, by night, willfully or maliciously break and enter any dwelling house
with intent to steal, commit a battery, shall be guilty of a high misdemeanor.
If, therefore, the defendant by night willfully and maliciously broke
and entered the Lindbergh dwelling house with intent to steal the child and its
clothing and to commit a battery on the child, he committed a burglary; and if
the murder was committed in perpetrating a burglary, it is murder in the first
degree.
In the circumstances of this case you must be satisfied that the
window was shut and that it was raised and opened by the defendant and that he
entered the house.
There is evidence from which you may conclude, if you see fit, that
the defendant feloniously, willfully and maliciously broke and entered the
dwelling house of Colonel Lindbergh in the night time with intent to steal the
child and its clothing and commit a battery upon the child; that defendant
brought the ladder to the Lindbergh [4515] house in East Amwell Township in
this county, and placed it up against the house near the nursery window; that
shortly after nine o'clock at night he ascended the ladder, maliciously and willfully
opened the closed window and entered the nursery room; that he seized the child
and its clothing and carried it out of the nursery room window, and that the
fracture of the skull which caused the child's death was inflicted when the
child was seized by the defendant and carried out and down the ladder, and when
the ladder broke.
If you find that the murder was committed by the defendant in
perpetrating a burglary, it is murder in the first degree, even though the
killing was unintentional.
If there is a reasonable doubt that the murder was committed by the
defendant in perpetrating a burglary, he must be acquitted.
I am requested to charge, and do charge, that each juror must reach
his own judgment after discussion of the facts with his fellow jurors.
If you find the defendant guilty of murder in the first degree, you
may, if you see fit, by your verdict, and as a part thereof, recommend
imprisonment at hard labor for life. If you should return a verdict of murder
in the first degree and nothing else, the punishment which would be inflicted
on that verdict would be death.
If you desire to return a verdict of murder in the first degree,
coupled with imprisonment for life, then you must so put it in your verdict,
because the law reads that every person convicted of murder in [4516] the first
degree, his aiders, abettors, counselors and procurers, shall suffer death
unless the jury shall, by their verdict and as a part thereof, upon and after
consideration of all the evidence, recommend imprisonment at hard labor for
life, in which case this and no greater punishment shall be imposed.
The Clerk may swear these constables to safely keep the jury until
they have agreed upon their verdict.
(At 11:14 a. m. the constables were sworn.)
THE COURT: I will ask the jury to remain where they are for the
moment. There has to be some little preparation made in the room where you are
to go, and the guards may be seated.
If any persons desire to retire from the courtroom now, if they will
do so very quietly, they may go.
The Court has not adjourned, the court is going right on, but I
indicate there is no reason why people who desire to retire shall not do so if
they will do so quietly and without interruption.
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