As the sordid trial for attempted murder stumbled into its sixth week, the accused was finally to testify: Dr. Burke was about to tell all. Well, something, anyway.
For those just tuning in and unfamiliar with the story so far (Googling for "sordid murder," perhaps?) read the previous article, or take a look at the introduction to this lengthy series. Otherwise, what is found below won't make much sense.
The Burke case mesmerized newspaper readers across the country in 1910, but no paper could hope to match the coverage of the Santa Rosa Press Democrat. Although it was the heyday of yellow journalism, PD coverage was remarkably impartial as well as thorough; when Burke took the stand, the paper published a complete transcript - every little gap-filling word, every irrelevant question, every stutter, every hem and haw. And the paper presented this transcription in page after page of tiny, tiny type that probably made armchair detectives swoon in delight. For each day of testimony the Press Democrat also offered a terse summary and introduction that set the stage. An example:
|Dr. Burke made a good witness in his own behalf. Calm and dignified in manner his answers were [illegible microfilm] and ready and given with an intelligence and noticeable appearance of frankness that was without its effect. At times his words weer spoken with great earnestness, as he leaned forward and gazed directly at his questioner. Again, where the matters under discussion were relative unimportant, he dismissed them with an expressive shrug of the shoulders and a smiling "yes" or "no" as the occasion might demand. |
The defendant told of his visit to the Kanaka Peak mine in December of 1909, and how he came to go there of the circumstances under which he happened to procure the dynamite that he brought back home with him and how he did not carry it in a grip or hand satchel, as has been claimed, but all the way in his pocket. He told of how he put the dynamite in a drawer in his studio, and after the explosion listened to the advice of his brother Dr. Isaac P. Burke and of Attorney Golden and allowed the former to take the package and bury it instead of keeping it and giving it over to the authorities as he felt that he ought to do. "And with this result," the defendant added as his eyes traveled for a moment about the crowded courtroom.
(RIGHT: Press Democrat photo of Dr. Burke in the courtroom. The dark black band is a scratch in the microfilm)
It would be impossible to summarize it all (much less retype it into a computer) but here are Doctor Burke's answers to key questions, abridged as indicated:
RELATIONSHIP WITH LU ETTA SMITH: Burke testified Lu Etta first came to the Sanitarium in 1901 as a patient, then remained there as an employee for several years. He denied any improper or illicit relations with her, "undue familiarities" or having sexual intercourse.
In her testimony a month earlier, Lu Etta Smith said Burke began supporting her shortly after the 1906 earthquake, and paid for her lodging with a family in Berkeley, a stay at a Carmel inn, and at a rooming house in San Francisco. Burke told the court he called on her four or five times at the boarding house, which was not far off the route between his San Francisco office and the Ferry Terminal.
Q: Did she ask you for the means during these times when you gave her money?
A: Yes, she would make her wants known to me and I would try to meet them as best I could.
He was even more coy about his financial support when cross-examined by the District Attorney - he had given her money for years, but no idea how much:
Q: You kept furnishing her money how frequently after (1906)?
A: Well, when she would ask me for it and I would have it.
Q: How frequently would that be?
A: I could hardly say.
The District Attorney also asked why he hadn't brought her back to the Sanitarium to live:
Q: Why didn't you bring her back to the Sanitarium if you were going to maintain her, instead of maintaining her away from your place?
A: Well, I can't say.
But Doctor Burke did say in a letter written shortly after the earthquake that he wanted to keep their relationship quiet. "Address me here (at his Oakland office)," he instructed her. "My letters are all opened at the Sanitarium by (family members) Alfred and Aggie, and it is none of their business what is going on between us, no, nor no one else." District Attorney Lea asked:
Q: Well, what was there in your letters to Lu Smith that you did not want them to know about?
A: Why, simply because that they were angry at Lu and I didn't know but what she might possibly write something with reference to that, too.
Q: What was there going on between you and Lu Smith that was nobody's business but your own?
A: Why, I think all the help and everything like that that I was giving her was nobody's business but ours, that is, as far as Alfred and Aggie is concerned, anyway.
Not long after the earthquake, Lu Etta turned up on the doorstep of Charles Thomas, an attorney whom she had met years earlier at the Sanitarium. Thomas wrote a letter to Burke saying Lu was in bad shape and wanted to come back to Sanitarium, but was afraid Burke's brother and sister-in-law would prevent her return. The defense entered Burke's response to Lu into evidence. In testimony, he recalled writing to her and providing a detailed explanation of how the human body digests food and how the autonomic nervous system works and if there is no cooperation with the mind in the evacuation of the bowel there is going to be trouble and "whenver the consciousness, or whatever that life makes known any of its purposes to the consciousness of the individual asking for support then we claim that consciousness should cooperate with that life" and after ten or twelve minutes of listening to that drivel the jury was probably reminded that Lu Etta Smith was not the only person in the case who was commuting from Crazytown.
LU ETTA'S MYSTERIOUS HUSBAND: Burke testified that he once ran into Lu and a man at the San Francisco Ferry Depot - a man she supposedly introduced as her husband, also named Smith. District Attorney Lea asked Burke:
Q: What kind of a looking man was this man she introduced?
A: Well, I didn't look at him close enough to give a very accurate description. He was a rather large man.
Q: Had you ever seen him before?
A: I don't think so.
Q: Was he dark or light complexion?
A: Rather, well, I could not call him either. He was not very dark, nor he was not very light.
Q: How was he dressed?
A: I never see anybody's clothes, Mr. Lea.
Q: Didn't know anything about how he was dressed?
A: No, sir.
Q: How old a man was he?
A: Oh, I couldn't say that.
Q: Could you tell what his nationality was?
A: I could not.
Q: Would you know him if you would see him now?
A: I would not.
Q: Never seen him before?
A: Never saw him before.
Q: Never received a letter from him?
A: No, sir.
Q: Never received any money from him?
A: No, sir.
Q: You don't know where he is now?
A: No, sir.
WHO WAS THE FATHER? The D. A. found Burke again claiming saintly virtue in not even asking Lu Etta about the paternity of her baby:
Q: Didn't she tell you who the father of the child was, did she?
A: No, there was not anything said about that.
Q: Did you ask her?
A: No, sir.
Q: Did you ever ask her?
A: I don't think so.
Q: And she never told you?
A: No, she never told me.
Q: So you did not quit sending her money for any time on account of her becoming in the family way by some other man?
A: No, sir. It has been my custom to always meet the need inquiring nothing into the life of the individual.
Prosecutor Lea also asked a question that seemed odd:
Q: Were you in San Francisco on June 9, 1908?
A: I don't think I was.
There was no followup to that question, but it contradicted earlier testimony that he was always in the San Francisco office on Tuesdays and Fridays, and this date was a Tuesday. It was also almost exactly nine months before Lu Etta's child was born.
Lu Etta Smith had left the San Francisco boarding house and returned to the Sanitarium when she was eight months pregnant. From other testimony, it was apparently about six months after the birth that she began saying Burke was the father.
Q: Did Lu Etta Smith at any time while there accuse you of being the father of her child?
A: Not directly to me, excepting the first time that I heard anything about it at all was at the breakfast table. She came up and spoke about, that I would not come and see my own child.
Q: State all about that, Doctor.
A: The evening before I think the baby was sick and she sent for me to come and see it, and I could not go right away. In a little while, Abble Smith came up and said the child was all right, and I did not go....And the next morning while I was at breakfast Lu came in and she said to me something about like this: "Why didn't you come to see your own child last night," or words to that effect. And I said, "Well, Mrs. Abble Smith said the child was all right and I didn't think it was necessary." Then she railed out and called me "a coward, coward, coward," and "villain," and so forth, and went on out the door.
Burke told the court Lu accused him of being father three times to his face.
Q: Why didn't you send her away? Why did you permit her to stay there so near your home when she was making that charge against you?
A: Oh, I did not care anything for the charge, Mr. Lea.
It was around this time that Dr. Burke decided he needed to visit his mine in the Sierras to discuss the installation of a new rock pulverizer. He returned with four - or perhaps, six - sticks of dynamite.
CONSPIRACIES AFOOT: While Burke was at his mine obtaining dynamite, the Sanitarium bookkeeper wrote him a gossipy note. Burke's sister-in-law, Aggie, he claimed, was telling everyone that Doctor Burke was the father:
...You know as I know, there never will be any harmony as long as Aggie is in your midst or anywhere near you and she makes Alfred the same way. It is a shame they have circulated such dirty lies about you and Lu Smith. You probably have heard of them. Aggie told Dr. Dessau she had gotten Lu Smith's confidence and she had told her that you were the father of that child and all such rot. Now, Doctor, what do you think of your own relative, one who owes every dollar she ever had to your brains and energy, trying to stuff such rot as that down outside people. Poor Lu Smith, almost an imbecile, who anyone could make believe and say most anything, is used by that sneak of a woman to cast such a slur as that...
That letter was not admitted as evidence, but we can again thank the Press Democrat for its diligent reporting of all the very juicy bits.
(RIGHT: Oakland Tribune illustration)
When Burke returned from the mines, Dr. Hitt picked him up in his buggy at the Fulton train station. Hitt had earlier testified that he asked Burke directly if he was the father and was told no. Hitt recalled he said Lu should probably be sent to an asylum, but Burke commented that she and her child would be "better off dead." In Burke's version of the conversation, Hitt said, "it would be better for the Sanitarium and all concerned if the woman was put away" and Burke refused. But Burke continued by claiming Hitt offered another solution:
A: Now he says, "Doctor, if that child gets sick," he says, "you let me treat it and it won't get well, there was a similar case in Chicago and they let me treat the child and it did not get well."
Asked why he would "continue friendly relations" with Dr. Hitt after hearing such an outrageous suggestion, Burke replied, "Well, I did not think so very much of it at the time. I thought the man was acting as he supposed in the best interest for the Sanitarium."
After his return from the mine, Burke found Lu Etta acting increasingly troublesome. She wanted Burke to give her money so she could leave the Sanitarium. When he refused, she decided to leave anyway and packed her bags. Burke told the stage driver not to give her a ride. When Lu Etta asked why, she testified he answered, "My dear girl, you haven't paid your bill."
Q: You tried to keep her from going, leaving there, when she wanted to leave by the stage, didn't you?
A: I did.
Q: And also when she wanted to go at a later time?
A: Yes, sir.
Q: You wrote her a note?
A: I did.
Q: Before you went up to the mines in January, did you? (This was not the trip where he brought back dynamite.)
A: I did.
Q: Did you intend to send her away at that time?
A: Well, she kept wanting to go away and wanting to go away ...I had kept her from going because I did not feel that she was able to go away and I had all this experience so far in helping her...
Q: Did you know that she was trying to communicate with an attorney?
A: Why, I had just heard of it.
Q: Wasn't that discussed when Dr. Hitt came over and met you at Fulton?
A: I don't remember that. It is barely possible he spoke something about her phoning that day I went away.
At this time Burke also began telling people he feared she would commit suicide by explosives:
Q: Doctor, did you ever at any time state to Doctor Hitt that Lu Smith would blow herself up with dynamite?
A: No, sir.
Q: Did you ever at any time state to Mr. Dillard that Lu Smith would blow herself up with dynamite?
A: No, sir.
Q: What did you say to them in that regard, if anything?
A: I stated to them that she had said she would blow herself up.
THE CRIME: At the trial, Burke repeated what he had told the Grand Jury. In the half hour before the explosion, he spent some time along in the business office, then briefly checked on two patients. He stopped by the kitchen and spoke to Dr. Jobe and Jean Maxwell, the night watchman. He testified that he was just returning to his office when the explosion was heard. He bolted outside and saw Maxwell was already headed toward the sound of the explosion.
A: There was somebody else, but I don't know who it was. I think, however, it was Mr. Edmunds (Earl Edmunds, an orderly)...I am quite sure it ws Jean Maxwell that said something about that being Lu Smith's tent....the other party, whoever it was, said something about Lu had blown herself up, or something of that kind...
Q: Did you make any remark at that time, Doctor?
A: I think I remarked, "I wonder if that girl has blown herself," or something to that effect...Then, I immediately proceeded to go up to the tent and Jean Maxwell was with me, and this one which I think was Earl Edmunds was behind us. We outran him...When we got up to about the little bridge, there I said to Jean Maxwell, "You better go by and get that lamp. It is probably dark over there."
Q: Well, where did you go then, Doctor, do you remember?
A: Well, I think I was around the tent there for a while to see if there was anything else that might explode or something of that kind. I know I made a slight investigation anyway...as soon as I got into the tent after Jean Maxwell, Alfred had Miss Lu Smith, holding her, and she was groaning, and wanted to know what had happened, and Jean Maxwell and myself, we went to fighting the fire. The tent was afire, and the bed was afire, and a place or two on the opposite side of the tent was afire. And of course, by this time others began to gather.
Lu Etta Smith was taken to tent next door, where she was treated by Dr. Dessau. Burke looked in late in the evening.
POLICE ARRIVE: The next morning, Burke was upset that bookkeeper Dillard had notified the sheriff's office. Burke testified that he did not oppose a police investigation, but rather "I felt that we could handle the situation," comparing it to the discreet handling of attempted suicides in the past. Burke's brother, Dr. Isaac Burke, arrived and learned about the dynamite from the mine. On Isaac's advice, he lied to police about its existence.
Q: Did you make any effort to find out the source of the explosive that did cause the explosion?
A: No, I can't say now whether I did or not.
Q: Then all the action that you took in reference to that was to try to conceal the dynamite that you had?
A: Well, if you want--if you wish to look at it that way. I did not feel that I could give the dynamite over by reason of acting under advice.
Later, he expressed regret for not being truthful:
Q: The officers asked you for the dynamite when they were out there, didn't they?
A: They did.
Q: And what did you say? You denied having it, didn't you?
A: I did. But now, Mr. Lea, in the office, when Mr. Lindsay and Boyes was there, they sopoke to me about the father, and Dr. Isaac and Mr. Golden were saying now, "Doctor, don't you talk, don't you talk" and I didn't say anything..the third time they asked me I said "No"; reluctanly I said "No."
LITTLE BOXES: Burke took full control of Lu Etta's care the evening following the explosion.
Q: Now, Doctor proceed and tell me and tell His Honor and the jury her condition...Saturday night after the explosion and Sunday morning as you observed it and as it was reported to you.
A: Well, the general condition was she was very debilitated, weakened, pulse in the neighborhood of 40. possibly a little more, but seemingly no pain, only at the time the dressing was changed and while I was there she was spitting blood quite considerably...but I considered that was all right because it was an effort of nature to relieve the congestion due to the shock that she had received. If she could not have thrown that off, why there would have been great danger. I did nothing whatever to prevent, of course, the hemorrhage because that was her salvation....by Sunday afternoon at the dressing there was scarecely any, just occasionally she would raise and spit out the blood.
By Tuesday morning, however, the wound was beginning to smell fetid. "I did not like the odor very well, so I took 1 per cent arsenic and boracic acid and I sprinkled around the edges of this cut wound on the arm and then bound it up and kept it wet in this solution, after cleansing it on Tuesday morning with the witch hazel and bichloride solution and alcohol. Now, on Tuesday evening there was no change only perhaps more fetid; still I applied the 1 per cent arsenic with the boracic acid on Tuesday evening. Wednesday morning it was very far from satisfactory, considerably gangrenous, and it was then that I fixed up some boracic acid with a stronger proportion of arsenic and sprinkled it on around the edges of the wound, apparently to the extent of where this gangrenous line reached around the surface of the wound. I let that remain on there until Wednesday evening (when) there was a decided change for the better."
Q: Of the stronger mixture, did you make more than one application of that, Doctor?
A: No, sir, only one. That was on Wednesday morning.
Q: Where did you have the mixture of boracic acid and arsenious acid or arsenic?
A: Why, I had it setting there. I left it there. I did not know but what I would want to use it again in the evening. It was setting there in a little cardboard box...
Q: Did you ever know that Mr. Lea or anybody else ever took any of that powder from that box?
A: I did not. I never heard of it until I heard Professor Price speak of it here in his evidence...there was something spoken of it in the paper, which was a wonder to me how the papers had ever gotten hold of it.
His defense attorney asked: "Had you previous experience with the use of arsenious acid, Doctor?"
A: A great deal.
Q: A great deal and used it in your practice?
A: Yes, sir.
Q: With success?
A: I have.
Q: Did you use that there, Doctor, for any other purpose than to assist in the relief of Lu Smith and the treatment of her wounds successfully? Did you use that for the purpose of causing her death by poisoning or secret poisoning or anything of that kind, Doctor?
A: I certainly did not.
Prosecuting attorney Lea asked for more details about the dose of arsenic:
Q: What percentage of arsenic was it that you placed on the wound on Wednesday?
A: Wednesday, that was the heavier dose. I was not sure what the percentage was. I am so used to using arsenic on sores of various kinds that I simply measured out what I though would do for the occasion.
Q: You did not make any specific measurement?
A: No, sir.
Q: When you made the 1 per cent application, did you measure that?
A: Yes, sir. I--I--I weighed that.
Q: Why did you weigh that when you could not weigh the heavier and more dangerous amount?
A: Well, I can't say, Mr. Lea, just why.
Through questioning, the District Attorney established the boracic acid and the arsenic were in identical small paper boxes that the Sanitarium kept in its pharmacy.
Q: You administered the boracic acid and the arsenious acid together?
A: I did.
Q: They were the same color, weren't they?
A: Well, practically so.
Q: The distinction was not observed to an ordinary eye?
A: No, sir, I think not.
Q: Did you have any method of confining that to a particular area?
A: Well, I put it on there, and put on the damp compresses of boracic acid, gauze, and then an antiseptic roll of bandages over that.
Q: Kept the whole saturated, didn't you?
A: Yes, damp.
Q: The object of that saturation was to reach the wound?
A: Yes, it reached the wound all right.
Q: What did you do with that box after you took it away from there?
A: Why, I think I set it on the desk for a few days and then I don't know what I did with it.
Q: You don't know where it is now?
A: I do not know; no, sir. Usually the nurses come and clean those things up.
Q: Did you tell Miss Lenox (the head nurse) that you were using arsenic?
A: I did not.
Q: Why didn't you tell her?
A: Why, I seldom, if ever, say to a nurse what I am using there, especially if it is anything of a nature like arsenic. I use it myself and prepare it myself.
Q: Why didn't you label that box so that it would show its poisonous character?
A: Why, I cannot say, Mr. Lea, why I did not.
THE DYNAMITE PLOT: With Dr. Burke's testimony over, the case was almost ready to go to the jury. But first: The "Dynamite Plot."
On hearing that Burke had been indicted, superintendent Frank Greenwell of Burke's Kanaka Peak mine near Oroville came down to Sonoma County to find out if they still had jobs. After speaking with Burke at the Sanitarium, he looked over the crime scene with attorney Golden, who was the brother of Burke's sister-in-law. The attorney told him that he had given Burke bad advice, and "he had destroyed the evidence, and it was necessary for him to make good. He didn't say in what way, or with what he had to make good," Greenwell testified. Later, Golden asked him to secretly bring down some dynamite, saying he wanted to conduct some "experiments" as soon as possible.
"Greenwell told Golden," the Press Democrat reported in its trial coverage, "that it was asking a good deal of a man with a family to expect him to do something that might get him into trouble, but later agreed to get the dynamite if it would help Dr. Burke any."
The superintendent, also being a Butte County deputy, told the sheriff there about the unusual request. Suspecting that Golden and Burke might be scheming to claim these dynamite sticks were the original ones Burke brought back from the mines before the attempt to kill Lu Etta, the sheriff marked the sticks. The two of them brought the dynamite to Sonoma County, where they met with our sheriff and District Attorney, who made further covert ID marks on the explosives.
The four sticks were handed over to Golden, but only after more intrigue by the cops. When Greenwell arrived in Santa Rosa they had him rent a buggy in the middle of the night and drive out to the Sanitarium - apparently expecting Golden would be lurking about outside at 2AM, waiting for delivery. When Greenwell returned to the livery stable with mission unaccomplished, they had him write Golden a letter, telling him that Greenwell had the goods and was registered under a fake name at a fleabag hotel in downtown Santa Rosa. And thus the package was delivered in a backroom of said fleabag.
During the middle of the trial, Golden and Dr. Isaac Burke asked the mine superintendent to come back to Sonoma County and demonstrate the explosion caused by two sticks of dynamite. Greenwell examined the dynamite first and was confident these were marked sticks before blowing them up. He also promptly told District Attorney Lea about the test. Golden told him to keep the unused dynamite.
"Do you know where the dynamite is now? asked Attorney Leppo.
"Yes sir; I have it here in my pocket," Greenwell told the court, pulling two sticks of dynamite from his jacket.
"Don't throw it," said Leppo, either joking or suddenly worried that the witness was about to blow up the Sonoma County courthouse rather than endure another moment of cross-examination.
"No, sir, I won't throw it; I am afraid of it myself."
Asked to point out the identifying marks, Greenwell showed that a few letters on the label had been scratched off. He explained that a portion of a paper clip had been stuffed in one end and pulled out his pocket knife, digging into the stick of dynamite.
"Is there any danger?" Judge Seawell asked. The PD reporter noted His Honor was "peering over cautiously."
"No, sir; not the slightest," replied Greenwell as he sawed a couple of inches off the stick and clawed even deeper in it with his blade. A few moments later he dug out the bit of buried wire and stopped poking at the dynamite, undoubtedly to the relief of all assembled.
And thus more than six weeks of courtroom sensations, the trial ended not with a bang (thankfully) but another leisurely stroll down a blind alley. During closing arguments it appears District Attorney Lea never said there was a conspiracy to claim the new dynamite was the original stuff. Instead, the jury spent most of a day hearing how the sheriffs of two counties and a D.A. must have had great fun creating all kinds of secret marks on the fake evidence and then tried to sneak into the hands of Burke and his boys. It was all a somewhat childish intigue, but hey, hearing about it must have been a very entertaining way to spend a winter's afternoon when you have to be stuck in a courtroom.