make a mistake in stating the law, and the case could be reversed and remanded on those grounds—no appeal before 1892 re- versed a lower court ruling on the ground that the jury had overreached its authority on deciding what the law should be. In that year the Supreme Court declared, finally, that the court was the lawgiver, and the jury would be required to follow the judge’s in- structions.55
On the subject of circumstantial evi- dence, or the subtext of that criticism, that the lack of evidence of a dead body in the Boorn murder case was a fatal defect in the conduct of the trial, Moulton explained the concept of corpus delicti. That only means, according to the Chief Justice, proof that the victim is dead and that “his death ap- pears to be caused by some criminal agen- cy.” He cited Wigmore, Justice Story, and Justice Shaw of Massachusetts as author- ity for not requiring a dead body to prove a murder, explaining that the caution artic- ulated by Sir Matthew Hale in 1680 not to convict for murder without a “body found dead” was not a rule of law. Confessions, wrote Moulton, “even if slightly corroborat- ed, may be sufficient to establish the corpus delicti.”56 By 1937, no confession would be admit- ted into evidence until the court ruled it vol- untary, but in 1819, Moulton explained, the confession and the evidence of coercion
were submitted directly to the jury to de- cide whether the confession “exhibited the truth, and to regard it as insufficient to jus- tify a conviction only if unsupported by oth- er evidence of guilt.”57
Moulton disagreed
with Sargeant, believing that the confes- sions were appropriately admitted and con- cluding that the jury had sufficient evidence in the Boorns’ trial to find Stephen guilty, “if they believed it.”58
The Chief Justice doubt-
ed Jesse’s guilt, and wondered about his sanity.59
Moulton wrote that he never complete-
ly appreciated the Boorn/Colvin case until he had himself “stood in the lonely, boulder strewn field, and [seen] the cellar hole, now only a shallow depression filled with dead leaves and bordered by a few of the old foundation stones of the house that former- ly covered it.” Only there did this incident cease to “appear unreal and far removed from us who lived under such changed con- ditions that it may be said that we are in a different age.”60
John Spargo
After he became a Republican, following a conversion from socialism and a long and fiery career as a labor organizer, John Spar- go settled in Bennington to run the Ben- nington Museum, and took up the Boorn murder case in a booklet published in 1947. Of all the accounts, Spargo’s is the most fer- vent. The previous iterations of the story stuck very close to Judge Chase’s notes. Re- lying heavily on Moulton’s account, Spargo took the story into deeper waters. Spargo explained the reason for Skinner’s
request for the reading of Stephen’s confes- sion. This was based on “the danger that it might leave upon the minds of the jury- men the impression that the written confes- sion which had been excluded was proba- bly much worse than the statement by Farn- sworth.”61
No “responsible jurist,” wrote
Spargo, “has ever charged that by admit- ting it the Court had committed an error prejudicial to the accused.”62
On the subject of the weight of the evi- dence, Spargo was firm that it was sufficient. Circumstantial evidence is not necessarily inferior to eyewitness testimony, he argued, and the use of ballistics and post-mortem examination, which is also circumstantial, is well established as admissible and useful in criminal trials.63
“An entirely conscientious
judge,” wrote Spargo, “with an inclination to severe strictness rather than leniency in his interpretation of the law and the applica- tion of its rules, might rule a confession ad- missible today upon identical evidence.”64
The Rest of the Story The Vermont Yeoman reported in 1820 that 14 THE VERMONT BAR JOURNAL • SUMMER 2012
Hackett was deputy marshall, attending the trial for counterfeiting. This account, reprinted in several news- papers, was skewed to make the case even more dramatic than it was, with Russell ar- riving in Manchester as the noose is put over the heads of Jesse and Stephen, even though the actual hanging was scheduled to be more than a month away, and then only for Stephen. The reporter for the Cleveland Herald visited Jesse in prison, and Jesse de- nied confessing to Hackett. “His story to us was rambling and incoherent, which might be accounted for by his age and palsied state, but he strenuously denied that Colvin was murdered, and in the main confirms the story narrated above.” The seed of doubt was germinated. Was the Russell Colvin who returned to Manchester actually Russell Colvin? Ger- ald W. McFarland doesn’t believe it, and he
www.vtbar.org
some inhuman relation of the Broons [sic], had suborned a Mr. Merrill, the person who related Jesse Boorn’s con- fession to the Court, to testify false- ly, in order to have them hung, that he might come in possession of their property—Merrill is said to have sud- denly disappeared on hearing that Col- vin was alive. Where the mystery of this transaction is to end, time alone can determine.65
Neither Sargeant nor Moulton nor Spargo used this rumor, and it must stand as one more spurious element in this odd story. Spargo reported that when Jesse finally met his brother, at Windsor, as Jesse was re- leased from the state prison, Jesse would not speak to him. Asked why, he said Ste- phen “was a d-----d rascal for confessing what he did, as it was the cause of all their trouble.” Reminded he too had confessed, Jesse said Stephen’s confession “made him crazy, or he should not have confessed at all.”66
Jesse reportedly confessed a second time in 1860, after his conviction for counterfeit- ing in Cleveland, although this was disputed by Sargeant, Moulton, and Spargo in their works. The newspapers reported,
Jesse Boorne, now nearly 70 years old, confessed to Mr. Hackett at Bur- ton that he and his brother did mur- der Colvin, the person who appeared before the gallows being a man from New-Jersey, who bore a striking re- semblance to the deceased, and who was expressly hired to play the villain- ous part. The affair created a great ex- citement at the time throughout New England, and lawyers retained for the defence in desperate murder cases have ever since quote the Boorn case for the benefit of their clients.67
Ruminations: The Trials of Jesse and Stephen Boorn
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