Hyman Lubinsky

If there was a witness who most helped Lizzie Borden win a “not guilty” verdict from the jury, it was probably Hyman Lubinsky, a young Russian immigrant and ice cream peddler, who the Boston Post reported was informally called “Luby.” He was born in what is now Ukraine and, as a teenager, he traveled with his family to America, arriving in 1885, becoming a naturalized U.S. citizen in 1890. At the time of the trial, he was 24 years old.

When it was his turn to cross-examine the witness, Knowlton did his best to shake the peddler’s story (not easy to do when Lubinsky didn’t speak English that well), and get him to admit that he’d originally told Officer Mullaly, who had interviewed him on August 8th, four days after the murder, that he’d driven his team past the Borden House at 10:30 a.m. But Lubinsky was adamant that he’d passed the house after 11 a.m., and he knew this because he was running late that morning. He’d gone to Gardner’s Stable on Second Street where his horses were kept, and he’d had to pressure the stable owner to let him have his team because 11 a.m. was feeding time for the horses.

Knowlton kept challenging Lubinsky but ultimately couldn’t get past the language barrier. Their exchange fizzled toward an end undoubtedly frustrating to both.

Q: Did you put your horse up for dinner?

A: No sir.

Q: Did you say a little while ago that you did put your horse up to dinner?

A: I didn’t say I put him up then. I told you I put my horse up.

Q: Did you put your horse up, or didn’t you put your horse up?

A: You ask me too fast. I put my horse up for dinner.

Q: Are you pretty sure of that?

A: What do you mean by sure?

Q: Sure? I mean sure.

A: I don’t know what you mean, sure—that I put my horse up for dinner? …

Q: Did you look at any other yards besides the Borden yard?

A: I looked all over the yard.

Q: What were you looking round for?

A: Because I am acquainted with looking around.

Q: Were you looking in any other yard besides the Bordens’?

A: I don’t think there is any more yards—no other yards more. I looked all over yards.

Q: Had you got by the house when you saw the woman?

A: I don’t know what you mean.

Q: Why?

A: Because not educated in the English language …

Q: You go down the street every day, don’t you?

A: Every day.

Q: You didn’t take any notice any other day?

A: Something made me look at it that day. What has a person got eyes for, but to look with?

Q: You don’t remember whether you ever saw anybody there before that day or not?

A: What do you mean?

Q: If you don’t understand, I will not ask it.

A: You ask too fast; I can’t understand what you mean.

Mr. Knowlton: That is all, sir.

Corroboration on Top of Corroboration

Next onto the stand was Charles Gardner, the stable owner, who corroborated the time Lubinsky left, recalling that the ice cream peddler had been upset that he was leaving so late, and he himself had been reluctant to let the horses go until they’d finished eating. He said Lubinsky kept urging him to “hurry up.” He confirmed that Lubinsky had left “between five and ten minutes after 11 a.m.” and that he himself had also headed down Second Street about 10 or 15 minutes later with his own team, carrying one of his customers, a Mr. Charles Newhall. By the time Gardner was nearing the Borden House, a boy called to him that there had been a “fight down below.” (Knowlton tried to shake Gardner as to the time he remembered Lubinsky leaving as well, but he stood by his regular schedule of feeding the horses at 11 a.m. and telling Lubinsky he had to wait, although he couldn’t get him to wait for long.) Gardner’s story was then corroborated by Newhall, the customer riding beside him, who took the stand to say he also remembered leaving the stable with Gardener around 11:15 a.m. or a little after, and also hearing about the fight as they rode down Second Street. “Someone said there was a man stabbed another one.” Each man’s story aligned with what was known about how quickly news of the murders was traveling up and down Second Street.

Undeterred by Lubinsky’s testimony and its corroboration, Moody called Officer Mullaly back to the stand and had him recount his initial interview of Lubinsky on August 8th. Mullally testified that Lubinsky told him that on the morning of August 4th “he’d been coming down Second Street from Charley Gardner’s stable, and as he went along by the Borden house, he saw a lady pass from the barn to the house of Mr. Borden’s, and he said it was 10:30 at that time; he was positive it was 10:30.” Mullaly wrote the time down in his memorandum book (which he showed Moody), then reported the interview to Deputy Marshal Fleet.

Mr. Robinson then stood to cross-examine Mullaly on the subject.

Q: Did you ask [Mr. Lubinsky] what time he usually went out on his route in the forenoon?

A: No, sir.

Q: You didn’t learn that his usual time was half past ten?

A: No, sir.

Q: And you didn’t learn from him that he found he was a little late that morning, did you?

A: No, sir.

Q: You didn’t consider it as of much account?

A: Well, I didn’t know how much account it was.

Q: And you don’t recall that he told you that he usually left at half past ten?

A: No, sir.

Q: And that he was late that morning, or something of that kind?

A: No sir, I don’t.

Q: He said he had come over from Gardner’s stable. You learned that?

A: Yes, sir.

Q: And you know where the stable is?

A: Well, I don’t know about that either.

Q: I say, don’t you know where the stable is?

A: No sir, I don’t.

Q: And that is all the attention you gave to it?

A: That is about all, as a report.

From his questions, it apears that Robinson was leading the jury to believe that Lubinsky told Lizzie’s defense attorneys, who tracked him down two weeks after the murder, that he’d told Mullaly that 10:30 was the usual time he started, but he was running late that morning. However, the implication was that Mullaly didn’t register that, perhaps because of the language barrier. This suggestion that it was Mullaly who was mistaken about the time Lubinsky said he saw the woman is not borne out by a newspaper account that appeared August 8th, the same day that Mullaly interviewed Lubinsky, in which Lubinsky apparently spoke to a reporter for the Fall River Daily Evening News .

“He relates that while riding in his cart past Andrew J. Borden’s house, at half past 10 a.m., on Thursday, he noticed a woman walking from the barn to the door on the north side of the house, which she entered. The woman was, he thought, a little taller than himself; that is, about 5 feet 4 inches; was bare-headed; wore brown or dark clothes—he didn’t take particular notice which; and had one hand on her hip, and the other hanging or swinging; that she walked at an ordinary gait; that he did not know who she was, and did not remember that he had ever seen her before; that the woman was not Bridget Sullivan, to whom he once sold ice cream at the house, and whom he could identify if she passed.”

From this article, it appears that if a mistake was made about the time the ice cream peddler, it would seem it had been made by Lubinsky and not Mullaly.

Though it didn’t come up in the trial, the newspapers following Lubinsky’s claim put out a story several days later reporting that Officers Harrington and Doherty went looking for this woman and concluded that Lubinsky had likely mistaken the Kelly yard for the Borden yard as they had located a woman named Ellan Eagan who told them that she’d gone into the Kelly yard to be sick around 10:30 that morning. (If true, this bit of investigation doesn’t appear in the reports made my Harrington and Doherty that are preserved in the Witness Statements). The assumption that Eagan was the woman Lubinsky saw soon made his claim less interesting to reporters, and clearly less interesting to the police.

The attorneys working on Lizzie’s defense, however, remained interested and eventually discovered, as seen from court testimony, that Lubinsky hadn’t left Gardner’s stable at 10:30 a.m. after all, but had either remembered, or perhaps been reminded, that he’d been running late that day. He had actually started down Second Street much later than he’d originally said to Mullaly and had, in fact, passed the Borden house at exactly the time that would have allowed him to see Lizzie walk from the barn to the side door at exactly the time Lizzie claimed to have done so.

In his closing argument, Robinson also took the prosecution to task for not making the effort to confirm Lubinsky’s story and learn the full details of his trip past the Borden House on the day of the murders. “The Government knew where Mr. Lubinsky was, that he [worked at the shop] of Mr. Wilkinson. They knew where he was. And they knew, too, that Lubinsky’s horse was kept at Mr. Garder’s stable … they could have found whether Lubinsky left the stable at eleven o’clock or half-past ten. But we have not troubled them to do that.” Robinson’s implication was clear; police and prosecutors did not trouble themselves to gather information easily available that would have told them that Lizzie was being truthful about her alibi. As Lubinksy had corroborated Lizzie, and several other witnesses had corroborated Lubinsky, Robinson declared Lizzie’s claim had been “proven.” He then concluded that “the Commonwealth must take back the charge that she lied about going to the barn, and if she did not lie but told the truth about going to the barn, she was out of the house at the very time the slayer murdered Mr. Borden.” In Robinson’s telling, when Lubinsky saw Lizzie in the Borden yard on the way back to the house, he had essentially established Lizzie’s innocence.

The District Attorney “Discards” Lubinsky

In his own closing, Knowlton dismissed Lubinsky’s information and told the jury that the peddler’s testimony was irrelevant. “I will spend little time in the prosecution of this argument to discuss Mr. Lubinsky. What he saw and when he saw it are absolutely indefinite.” He also declared Lubinsky to be “a discarded witness,” which, in a legal context, refers to a witness whose testimony or evidence is deemed unreliable or otherwise inadmissible by the court. Why did he deem Lubinsky unreliable? Because Andrew Jennings knew about his story at the time of the preliminary hearing and didn’t call him to testify. In other words, because Lubinsky was not called by the defense at the earlier hearing, that meant the defense didn’t consider him a reliable witness. Or, as Knowlton put it, “He had not got things patched up.” He also tried to dismiss Gardner’s corroborating testimony as to the time Lubinsky arrived at his stable (when he was feeding the horses) and the time he said Lubinsky left, by saying that Gardner couldn’t have been exact as to time because “how long does it take a feed a horse?” He added that the men of the jury would know exactly what that meant, leaving non-horse owners to wonder.

Knowlton also disputed the line of sight from the street where Lubinsky was going by to the barn. He said the defense had made it seem as if there was a clear line of sight from the street to the barn door. But Knowlton reminded the jury they themselves had been in the street in front of the house and “you saw that you could not see the fraction of a rabbit that came out that barn door.” Of course, Lubinsky never said he saw Lizzie come out of the barn door, he said he saw her walking from the direction of the barn, which was, of course, visible from the street, toward the side steps of the house, also visible from the street. Knowlton then made clear his doubt that Lubinsky would have been looking into yards at all; first, because he claimed to be late and in a hurry, and second, he couldn’t have been “looking for customers,” because he hadn’t loaded up with ice cream to peddle yet, he was on his way to do that. Knowlton then suggested that if Lubinsky did see “a lady” in the yard, it might have been Bridget or Adelaide Churchill or Alice Russell going to or from the side door of the house. (Of course, none of these woman approached the side door from the barn, nor were any of them “walking slowly.”) He thus concluded that “what he saw and when he saw it have no significance.”

Having thus discarded the witness to his own satisfaction, in the very next sentence Knowlton said, without a trace of irony, that “it is not charged here that [Lizzie] did not go to the barn. It is not charged here that perhaps, in some part of the work of concealing the evidence of that crime, she may have found it necessary to visit the barn. What is charged here—and Lubinsky never touches a hair of it in any part of the this story, if you take it to the uttermost—what is charged here is that her deliberate, her chosen, her formal alibi of being up in the loft of that barn twenty minutes … is absolutely beyond the power of human credence to believe.” Knowlton seemed to be suggesting that maybe Lubinsky was right after all and he did see Lizzie coming back from the barn but only because she was out there cleaning herself up or otherwise concealing evidence, and not because she was telling the truth about being in the barn loft.

Knowlton’s effort to discredit Lubinsky was not successful. The jury apparently did believe the ice cream peddler’s testimony, believed he saw Lizzie walking slowly from the barn just as he said, arm swinging as if she had not a care in the world and no idea what she was about to find. All of which made it easier to believe Lizzie was telling the truth about poking around in the barn loft and not in the sitting room delivering hatchet blows to her father’s head. A few days later, the jury found her “not guilty.”

Who Was Hyman Lubinsky?

Lubinsky was born in Elisavetgrad, Russia (now Korvohrad in Central Ukraine) on March 15, 1869 to Jacob & Bessie Sanderov. His family emigrated to the U.S. in 1885, possibly fleeing the anti-Jewish pograms that were then being waged in his home city. He’d been in this country five years when he became a naturalized U.S. citizen, and he’d been here seven years when he drove his team past the Borden house on the day of the murders. At the time of the trial the following year he was living at 64 Spring Street in Fall River. A number of his many siblings also lived in Fall River.

Lubinsky was known to law enforcement authorities, having been arrested in 1889 for fighting with two men who Lubinsky claimed assaulted him (the judge dismissed the case). That same year he was “found guilty of peddling without a license.” Much later, in 1904, The Fall River Globe reported he found himself in trouble with the law again for purchasing cloth stolen from a mill; he denied knowing he’d bought stolen goods. The Globe reported a similar story in 1913, saying that Lubinsky was the target of a sting operation and had been caught buying stolen cloth at 3 cents a yard, which he would later tell officers he planned to sell for 7 cents a yard. He was found guilty and sentenced to two months in prison.

As for his personal life, according to The Boston Traveler, Lubinsky married Doris Kaplan in 1899. Soon thereafter, in 1900 and 1903, Doris gave birth twice to children who were stillborn. Doris filed for divorce in 1907, citing Lubinsky’s abusive and cruel treatment and his failure to provide for her. Ironically, in 1917, Hyman Lubinsky, witness for Lizzie’s defense, ended up renting the house at 92 Second Street; he lived for several years in the very house where Andrew and Abby Borden were killed. He died in 1923, aged 54, of pulmonary tuberculosis.

(Credit for conducting the research for this biographical information belongs to a Lizzie Borden Society forum poster by the name of CagneyBT)