Forgotten News Read online

  Furthermore, the testimony strongly suggested, said Judge Davies, that whoever did the murder would have been covered with blood, but there was "no evidence of garments in the house thus defiled or stained." They were also to consider "the testimony of Dr. Catlin, in reference to the alleged disability of the prisoner, by reason of the rheumatic affection with which she was afflicted three years since."

  "During the delivery of the charge the most profound silence was observed throughout the vast assembly," and finally the judge concluded, "… I will quote an old and well-known authority: 'The case must … exclude to a moral certainty every other hypothesis but that of the guilt of the accused.' In cases of doubt," Davies instructed the twelve listening men, "it is safer to acquit than condemn." Then: "To your decision I now commit the fate of this unfortunate woman and the future of herself and her family. While you deal justly by her, it is your privilege also to deal mercifully; for as I have before remarked, if you have any reasonable doubt of her guilt, that doubt is to be cast into the scale in her favor, and entitles her to your verdict of acquittal. If, on the contrary … you deem the charge … proven, it is your duty to your country and your God to say so, though it be with anguish of heart, and may cause deep shame and sorrow to others. But if in this final reviewing you are not satisfied of her guilt, pronounce a verdict of acquittal, and let the accused go free."

  Mrs. Cunningham had been "resting her head upon a chair in front of her, her daughters … still seated at her side, fanning themselves beneath their thick brown veils to partially escape the effects of the heated and unhealthy atmosphere which pervaded the room." The jury was sent out now, at precisely seven o'clock, said Times and Tribune. "Mrs. Cunningham, who had wept very much during the address of Mr. Clinton, the Attorney General's summing up, and the Judge's charge, and whose physical system appeared nearly prostrate, covered her face with her handkerchief, and seemed very nervous and agitated." "The counsel arose and began to indulge in familiar conversation, and the auditors began to speculate among themselves as to how many minutes would pass before the Jury would return with a verdict of acquittal…." And "nobody was surprised, when after having been out thirty-five minutes they returned…."

  The men took their seats; Mr. Vandervoort, the clerk, called the roll; then (a dramatist at heart must have devised this ritual) he said, "Gentlemen of the Jury, have you agreed upon a verdict?"

  Playing his part, the foreman responded, "We have."

  Mr. Bartolf, a court officer, "caused Mrs. Cunningham to stand up, and turn her unveiled face to the Jury-box." She did so, "evincing in the act a seeming unconsciousness of what was transpiring about her; she stood still and motionless until her eyes, without expression, turned toward the Jury."

  Vandervoort, the clerk, then said, "Prisoner, look upon the Jurors; Jurors, look upon the prisoner. How say you, gentlemen—do you find Emma Augusta Cunningham, otherwise called Burdell, guilty or not guilty?"

  And at last he was allowed to disclose the verdict. "Foreman—NOT GUILTY." Times and Tribune both quoted him in capitals, but there hadn't really been much suspense. The judge's charge, I think, had been virtually an instruction to acquit; and, I also think, properly. What else? There'd been no case made, that's all.

  Not guilty, said the foreman, and Emma Cunningham "stooped down, and asked her counsel what the verdict was, and on being told," supplied a little drama herself, falling "back into the arms of her daughter, Helen."

  "… when she had sufficiently recovered," she was led with her family into an adjoining room "where she received the congratulations of her friends and the Jury. An hour later she and her daughters … were rolling in a carriage toward the house No. 31 Bond Street…."

  Home they all went to what had once been Harvey Burdell's house, and there "small knots of people gathered about the premises, with the expectation that Mrs. Cunningham might appear at the windows…. Occasionally they would raise a feeble cheer, with the intent to draw her forth. But she did not make herself visible—and before the dusk had darkened into night the last straggler had departed."

  The drama, they may have thought, was finished at last, but instead the curtain had dropped only on Emma Cunningham's preparations for an astonishing final act. The cops gone, the three Cunningham women and Emma's lame sister, once the boys were in bed, had the house to themselves; and I wonder if the talk this evening didn't quickly turn from what had just happened to the future. For nothing had changed; it was a future Emma Cunningham was as single-mindedly determined upon as ever. And now on this evening of the very day she'd escaped being sentenced to hang for murder, she was planning to bring that future about—with the most bizarre act of her life.

  12

  Emma Cunningham had a secret reason for believing she'd win the next big one: Surrogate Bradford's decision on whether she was really Harvey Burdell's widow; and, a free woman now, she began attending his hearings. How much of a secret it was I'm not sure because I don't know how she was dressed, though of course she'd have worn the many-layered garments of the day, but she'd already told her secret to at least two people. One was Dr. David Uhl, her physician here in Manhattan, and he'd guessed it long before.

  "… Shortly after Mrs. Cunningham was confined in the Tombs," he said later, "she sent me a note requesting my professional attendance." In her cell, David Uhl listened to her symptoms, then prescribed for her, because of course he recognized what those symptoms meant. They were "peculiar to persons who are enceinte, and during one of those visits, I asked her if she was in the family way. She said she'd hadn't told that to anybody, and wouldn't answer the question at that time…."

  But just before her trial began she told her attorney, Judge Dean, and, I would suppose, Henry Clinton. And apparently others guessed, because "shortly after the conclusion of the trial, a rumor prevailed that she was with child…." And now she confirmed to Dr. Uhl that yes, she was seven months pregnant by Harvey Burdell.

  As she sat listening to the testimony at the surrogate's hearing, however, Emma Cunningham said nothing about being pregnant, nor did Judge Dean, her attorney. Familiar figures took the stand once again: Hannah Conlon … Samuel Ashton … Dr. Cox … Mary Donaho. And there were new witnesses, and depositions from upstate, as the two sides tried to prove either that Dr. Burdell was in New York City on October 28, when Emma Cunningham said they'd been married, or that he was not; neither side ever quite succeeding. Sophronia and Cyrenius Stevens once again described the mysterious visit of lawyer "Van Dolan," sent by Mrs. Cunningham, and who Harvey Burdell had suspected was John Eckel in disguise; and whom Sophronia Stevens—her husband not quite sure—positively identified as Eckel.

  This time the Stevenses got rough treatment from Mrs. Cunningham's lawyer. "What is the nature of your business?" Dean wanted to know of Sophronia.

  "I decline to answer that. I don't think that is any business to you. (Laughter.)"

  "Who has lived in the house with you? … Any ladies, young ladies?"

  "No."

  "Any females?" he persisted.

  "My domestics."

  "Do you keep an assignation house, then?"

  "I don't choose to answer any such questions as that…."

  He was just as rough on Cyrenius. "I decline answering what has been my business for the last nine years," Cyrenius replied once; and to further questions: "I never was indicted in the United States Court in Philadelphia for passing counterfeit money in 1832…. No matter whether I knew Smith Davis, old Hayes' pimp. I had him arrested, and sent to State's Prison in spite of all the police. Smith Davis was called King of the Conakers. I did not turn State's witness. I knew of his tricks; we had to get an honest District Attorney and an honester Judge than Dickey Rickey before I could get him to the State Prison…. I followed the tanning and currying business 35 years ago; it is none of your business what I have done since."

  "Have you been engaged for the last nine years in keeping houses of assignation?"

  "I abide by the laws of
my country and this State."

  Personally, I was with the Stevenses all the way. I think they were a couple who'd seen worse times, all right, but were now just trying to get along, Dean raking over their past to discredit them here. No doubt he was only doing his duty, but that's what lawyers say when they get an ax murderer free on a technicality.

  A dozen or so days of the hearing, and not till the final day did Judge Dean play Emma Cunningham's trump card; didn't actually play it, but just sort of flashed it.

  "If it were true," he said to Surrogate Bradford—and the italics are Times's and Tribune's both—"that in the ordinary gestation, a child should be born to Harvey Burdell, then not only all the ties of blood and nature, but all the dictates of humanity, demand that the Court should lean in favor of that innocent unborn child, rather than in favor of those who have no direct claim upon the property. I will say nothing of the consequences of a decree of bastardy in advance…."

  The Times said, "This announcement was … received as authoritative that Mrs. Cunningham was enceinte, and as she soon after began to appear in public it was noticed that her form gave corroborating evidence…."

  When Bradford adjourned to think over his decision, I would imagine Mrs. Cunningham felt hopeful. Being pregnant by Harvey Burdell was no proof they were married, of course; but this was a practical world, and I assume that in reaching a decision Bradford would have to consider Mrs. Cunningham's pregnancy, and the consequences of a decision that would make Burdell's unborn child a bastard. But Mrs. Cunningham had a worry; while she felt sure she'd produce a baby all right when the time came, the possibility of a miscarriage troubled her, she said, since a stillborn child would not inherit. And it would also, I think, leave Bradford free to consider only the evidence of the hearing.

  Dr. Uhl had worried all along. In the Tombs, when he'd first guessed Mrs. Cunningham was pregnant, "I told her that … she should be examined by physicians. And at another conversation she asked me how we found out when a person was in the family way." After this Mrs. Cunningham didn't seem to feel an examination was immediately necessary, according to Uhl, but when the trial was over she sent for Uhl, "and I attended her at No. 31… and she frequently expressed anxiety of having a miscarriage, as she wanted to have a living child, so that she could have an heir to the Burdell estate. I pressed upon her on different occasions the importance of having an examination by other physicians." She remained unwilling to do this, and "after I mentioned that subject," Uhl said, "she avoided me…."

  At home, Emma Cunningham seemed happy in her pregnancy. Her widowed sister, Ann Barnes, said, "She would often want little things, like women who are in that situation. She … talked with me frequently about it, and I would often joke her about her little heir, and she would laugh and say she wished it was here."

  Mrs. Cunningham had friends named Wilt whom she'd known for twenty-two years. He was an unemployed butcher, they lived at 43 Second Avenue, and Mrs. Wilt's sister, Jane Bell, who was a nurse, lived with them. The Wilts and Mrs. Cunningham visited each other often, and she had confided in the Wilts and Jane Bell that she was pregnant, and expecting in August.

  She hadn't told daughter Helen in so many words, but of course Helen knew. "Other persons had spoken to me about it, and asked me when mother would be confined." And "I judged from her appearance." Mrs. Cunningham did tell Augusta, but Augusta said, "I told her I did not wish to hear it." It was news she just couldn't take: "my nervous system … had been so deranged that I was sick for three days after the conversation." Her mother was careful not to speak of it again, Augusta said, but nevertheless Augusta mended "the bottom on an infant's dress" in preparation.

  Nurse Jane Bell also repaired some infant clothes, and her sister, Mrs. Wilt, had some baby clothes bleached for Mrs. Cunningham. The baby clothes, you wonder, of some of the Cunningham children, saved through the years?

  During this period, on July 23, Hannah Conlon filed suit against Mrs. Cunningham for back wages. Her complaint said that, at the rate of $7.00 a month pay, she was owed $34.50, plus interest. In addition, Hannah said that on January 1 she'd been given a dollar as "a New Year's gift," which Mrs. Cunningham took from her under pretense of keeping it for her. But she'd never given it back, and Hannah sued for this dollar, too: a total of $35.50, of which interest was due on $34.50. She signed her complaint with an X.

  Dr. Uhl was trying to decide what he thought about Mrs. Cunningham and her pregnancy. Once before he'd vacillated in his feelings about her: on the morning Harvey Burdell's dead body was found, David Uhl had stood in her bedroom looking at the apparently distraught woman, and there had entered his mind, he had said, the thought that she was faking, and that she was the killer. He was wrong, he'd decided presently, and had come to believe she was innocent: possibly her two best friends at the trial had been the doctors Uhl and Catlin. But now Dr. Uhl found himself doubting Emma Cunningham once again. She'd avoided him, he said, after he'd urged a medical examination, "and this gave me an indefinable suspicion that something was wrong. After frequent conversations on that subject I was assured by other persons that everything was all right, and that Dr. Catlin, of Brooklyn, her former family physician, and myself should make the proper examination, and attend her during the confinement." So once again it seemed that he had misjudged Emma Cunningham.

  Then an odd thing happened: at Bellevue Hospital. During the hearings before the surrogate, Mrs. Cunningham had visited Bellevue several times—to visit Mary Donaho, who was sick there; this in spite of some of Mary's testimony. Presently a nurse of the lying-in ward, a Mrs. Avis, "received a note written in a charmingly delicate hand. The nurse was requested to furnish her with a newborn child, unwashed, and money would be no object. If the nurse assented, she was to address the initials 'L.B.' at the Broadway Post-Office." Mrs. Avis threw the note away.

  One morning a few days after he'd agreed to attend Emma Cunningham at the birth of her new baby, Dr. Uhl went to 31 Bond to see his patient. She had a new and much larger bedroom now: Dr. Burdell's old bedroom, the one in which he'd been laid out in his coffin. It wasn't his bed, though, or furniture; that had been sold at the auction, and Mrs. Cunningham had had to buy new, making a down payment, the rest on time. Now in that bedroom David Uhl learned from Mrs. Cunningham the remarkable size of the fee she offered him for attending a simple confinement along with Dr. Catlin. It was to be a thousand dollars, an enormous fee; to be paid just as soon as the newborn heir and its widowed mother had Dr. Burdell's estate.

  The fee wasn't too much, however, because "she told me then, very plainly," said Uhl, "that she was not in the family way, and that we would have to get hold of a child in some way or other…."

  Where had this weird idea of a fake baby come from? I don't know, but months ago at the inquest, an anonymous letter signed "Observer" had come to the coroner. He'd read it aloud, and the newspapers published it. "Observer" suggested that Emma Cunningham had gotten Eckel to impersonate Dr. Burdell at a fake wedding, and that then they'd murdered the Doctor. But he also suggested something no one else had thought of: suppose Emma Cunningham were to get herself pregnant? "If in the family way," he suggested cleverly, "the child would be supposed to be his, and she and it would get all the property." Now—wadding shoved deceptively up under the front of her dress—Emma Cunningham sat in the murdered man's bedroom offering David Uhl one thousand dollars to find her a newborn baby.

  He wasn't that good a friend. "I did not give her any satisfaction, but the next day I called on … my lawyer, and told the whole case, and asked what course to pursue. He told me … to inform the District Attorney…. I did as he advised, and … called on Mr. Hall at his office in Broadway, and told him all I knew of the matter, and that I wished to have nothing more to do with it."

  No such luck. If, as I do, you see A. Oakey Hall, in spite of his old-style glasses, as a man about town, then also, as I do, you may see him as rubbing his hands in anticipation of what may just have looked like fun, and grinning at
this solemn David Uhl here.

  For the worried Dr. Uhl, wanting "nothing more to do with" this, said, "Mr. Hall thought… that I should assist him in detecting her, and prevent the consummation of the contemplated crime." And so, in the iron-and-cobble clatter of Broadway just outside the windows, the two men sit in an antique office, wearing the loose dark clothes and huge neckties of the day: Hall is waiting, smiling perhaps; Uhl frowning. Then David Uhl tells Oakey Hall that he'll think it over; as he did for a couple of days.

  For apparently Uhl was a conscientious man, and what he had to think over was the confidentiality of the doctor-patient relationship. Finally he decided that while this applied to what a patient told a doctor treating her, it did not apply to a healthy woman urging her doctor to join her in crime. And he went back to Hall's office, and said he'd do it.

  "Almost every day" then, said Oakey Hall, "Dr. Uhl would come to see me at my house, generally late at night. Neither of us mentioned it to anybody else." Hall decided it was "advisable to have the confinement hurried; I had received an intimation that possibly the Surrogate might decide the case by the middle of August, and thought we had better have it through."

  The two men worked out a scheme, then back went Dr. Uhl to 31, where his patient sometimes lay sick and nauseated as befitted her condition, and sometimes—feeling better—walked around the house, her dress shoved out in front a little more each few days.

  I think her daughters believed she was pregnant. I feel sure Helen did, and I think Augusta did, too. Anyway, David Uhl told Emma Cunningham he'd help her, but what about Dr. Catlin, who was to assist in the fake delivery? He wasn't to worry, Mrs. Cunningham told him. "She stated that [Dr. Catlin] could be trusted in this matter, for she had him so completely in her power, that he did not dare disclose anything connected with it, that he had adhered to her interests during all her troubles with her first husband, and she could rely upon him."