Trial and Error Page 26

  After Mr Chitterwick came the sensation of the third day, with the great Sir Ernest Prettiboy himself entering the box to create a precedent in the annals of the English Bar, and allowing himself to be examined by his own junior. With fearful solemnity Sir Ernest corroborated the findings in the gardens which Mr Chitterwick had already described and managed to insert an opinion that it would have been quite impossible for Mr Todhunter to have faked these or even to have known where to look for them, had he not made them himself. Sir Ernest then quickly left the box before the judge or any other interfering person could remind the jury that nobody now, not even the police, disputed Mr Todhunter’s presence in Miss Norwood’s garden at some time on the fatal evening, and therefore the traces of his entry in no way helped to prove that it had been his finger that pulled the trigger. Sir Ernest’s hushed solemnity was worth a ton of dull evidence.

  The police officers who had been instrumental in recovering the stolen bracelet, upon information furnished by Mr Todhunter, came next; and naturally Sir Ernest took the opportunity of rubbing into the jury the importance of this testimony. The afternoon was taken up with medical evidence to the effect that the time at which Miss Norwood’s death must have occurred seemed to indicate that Mr Todhunter rather than Palmer was probably the cause of it; and this was followed by other evidence, including that of Mr Todhunter’s own doctor, of Mrs Greenhill and Edie and of various of Mr Todhunter’s friends to prove that he was probably the sanest person walking about London during the past year. The judge did become a little restive under all this testimony, pointing out to Sir Ernest that as no one had questioned the sanity of the accused and as the accused’s own counsel had already dealt with the matter there was perhaps little need to emphasise it quite so much.

  “My lord,” replied Sir Ernest, “with the greatest respect, I understand that the question of the sanity of the accused, on which my learned friend and I are fully agreed may be raised in another quarter, and I therefore feel it my duty to show that he was fully responsible for his actions.”

  “Very well,” said the judge resignedly.

  4

  Mr Todhunter made a note.

  “I am astonished at the strength of our case. I thought, before the proceedings opened, that we should have some difficulty in making it appear feasible, let alone convincing. But it is very different when one hears the evidence marshalled like this from the beginning of the story to the end. I should say now that our case is conclusive. What I can add myself in the witness box will be only a supererogation. This is very satisfactory.”

  Sir Ernest, however, was not quite so certain.

  “Wait till you’ve heard the police johnny, my boy,” he said. “There are some pretty big holes in our story, you know, and he’ll know how to tear ’em bigger.”

  “I wish, we’d never invited him to come and interfere,” said Mr Todhunter, alarmed by this prognostication.

  “Oh, much better. Otherwise, supposing you were found guilty, the verdict would only be upset on appeal, on the ground that the true verdict had never been put to the jury for their consideration.”

  “But how could there be an appeal if both prosecution and defence are satisfied with the verdict?”

  “The Crown would appeal.”

  “But has the Crown any right to intervene with an appeal in a case in which it has not acted?”

  “Don’t ask me silly questions,” said Sir Ernest.

  5

  The next morning the case for the defence opened with a brief statement by Mr Jamieson on the lines which he had already indicated. He then called his one and only witness, and Mr Todhunter shuffled into the box.

  Mr Todhunter had passed a very bad night. He had been dreading this ordeal. Not least did he dislike the necessity for committing perjury. It seemed to him most exasperating that, in order to obtain a trial at all, he had to commit perjury. But there it was, and perjury was what he had to commit.

  The first part was easy enough, though even with all Mr Jamieson’s most persuasive leading Mr Todhunter was not sure that he had managed to put before the jury the exact state of mind which had led him into Miss Norwood’s garden that night.

  “I. . . um . . . formed my decision on the unwitting advice of many people,” he mumbled when invited by his counsel to explain to my lord and the jury just how it was that he had arrived at so drastic a determination as to commit murder. “I knew that if they gathered I was serious, they would not tell me what they really thought. I therefore put to them an . . . um . . . hypothetical case. The unanimity with which I was advised on all sides to commit murder impressed me. And the more I considered it, the more reasonable I found it. Murder of an entirely impersonal . . . um . . . nature seemed to suit my exactly.”

  “It did not occur to you that perhaps your friends might be joking?”

  “I’m afraid it didn’t. And I don’t believe,” said Mr Todhunter with some defiance, “that they were. I believe they meant what they said.”

  “Please explain a little more fully what you mean when you say that murder seemed to suit your case exactly?”

  “I mean, I never expected to live to be hanged,” said Mr Todhunter simply.

  “You did not expect to live as long even as this?”

  “I thought at that time that I should . . . um . . . be dead about a month ago,” said Mr Todhunter shamefacedly.

  “Perhaps, in the circumstances, it’s lucky you weren’t,” commented his counsel drily.

  Slowly, by means of laborious question and answer, Mr Todhunter brought his tale up to the moment of his decision that Miss Jean Norwood must be eliminated.

  “By that time,” he explained, “I had made the fullest enquiries, and I was unable to evade the conclusion that her death would bring . . . um . . . happiness to a remarkable number of people.”

  “You formed the conclusion that she was a bad woman?”

  “She was a poisonous bitch,” replied Mr Todhunter, to the shocked delight of everyone in court.

  Five minutes later he was committing manful perjury.

  “I think I intended to kill her right up to the moment when I came face to face with her. Then. . .”

  “Yes?” prompted Mr Jamieson amid a hushed expectancy.

  “Well, I . . . um . . . I suppose I lost my nerve.”

  “Did you threaten her with the revolver?”

  “Yes. And . . . er . . . it went off. Twice. I’m not used to firearms,” apologised Mr Todhunter.

  “How could it have gone off twice?”

  “Well, the—the first shot made me jump. It was . . . er . . . unexpected, you see. And I suppose the shock made me tighten my finger on the trigger. I . . . er . . . um . . . can’t account for it in any other way.”

  “And what happened next?”

  “I was a little dazed,” said Mr Todhunter, relieved to be back on the path of truth again. “Then I realised that she had fallen back in her chair. There was . . . er . . . blood all over the front of her dress. I didn’t know what to do.”

  “And what did you do?”

  “I forced myself to go up and look at her closely. She seemed to be dead. I lifted her forward a little. Than I realised that the bullet had gone . . . um . . . clean through her. It was actually lodged in the back of the chair. I . . . um . . . picked it up and put it in my pocket. Later I threw it into the river.”

  “Why did you do that?”

  “I’d read somewhere that bullets can prove the gun that fired them. I thought it best to protect myself by disposing of it. I realise now that it was an unfortunate action.”

  “Did you do anything else before you left?”

  “Yes. There were two tumblers on a table. I wiped one of them with my handkerchief but not the other.”

  “Why did you do that?”

  “I don’t know,” confessed Mr Todhunter.

  “Did you do anything else?”

  “Yes. I removed a bracelet from Miss Norwood’s wrist.”

  “Wit
h what object?”

  “I’m really not sure now,” said Mr Todhunter abjectly. “I was . . . um . . . very confused. I had had a great shock.”

  “But you must have had some object in mind?”

  “Yes, I think it was so that I could prove my . . . um . . . guilt, should the necessity ever arise.”

  “Do you mean, in just such a situation as has in fact arisen?”

  “Precisely.”

  “Did you anticipate any such situation?”

  “Good gracious, no. Such a thing never occurred to me. Dear me, no.”

  “You never expected that anyone else would be accused of what you had done?”

  “Certainly not. Otherwise . . .”

  “Yes?”

  “Otherwise,” said Mr Todhunter with dignity, “I should never have done it.”

  “Thank you, Mr Todhunter. . . . My lord,” said Mr Jamieson impressively, “I have made the examination of the accused as brief as possible, owing to the very precarious state of his health. I have a certificate from his doctor here to say that he is not really in a condition to stand trial at all, if it were not that to have refused permission would probably have agitated him more than the trial itself. In fact the doctor says, very frankly, that he might die at any moment and that strain or agitation of any kind would probably be immediately fatal. I am able to say this in the presence of my client since he knows it perfectly well himself. I propose therefore to end my examination of him at this point. I think I have covered all the necessary ground; but with the greatest respect, if your lordship thinks there is any point which should be made clear to the jury that I may have omitted, I would ask you to put it to my client yourself.”

  “I don’t think there is, Mr Jamieson. Your client admits that it was he who killed the dead woman. The only issue I am trying is whether he did so in wilful murder or whether his action can be held to be manslaughter. I will put this simple issue to him, if you like. . . . Mr Todhunter, did you shoot Ethel May Binns deliberately and, as the law puts it, with malice aforethought?

  “Er . . . no, my lord,” replied Mr Todhunter somewhat unhappily. “I did not that is . . . um . . . not with malice aforethought, I think.”

  “In view of the remarks of my learned friend, my lord, I will not crossexamine the accused.”

  There was some attempt at applause from the back of the court, which was instantly quelled.

  A lean and cadaverous barrister rose.

  “My lord, I have the honour to represent the commissioner of police. Mr Jamieson’s remarks make my position a difficult one; nevertheless I understand that it is by the accused’s express wish that I have been invited to cross-examine him. It is for your lordship to say whether such unorthodox procedure is inadmissible.”

  “With so much that has been unorthodox already, Mr Bairns, a little more will hardly matter. But I must be satisfied that the accused is willing to answer your questions.” He turned his ancient head towards Mr Todhunter. “Do you wish to be given the opportunity to answer any questions that the commissioner of police may wish to put to you through his counsel?”

  “In the interests of . . . um . . . justice, my lord,” Mr Todhunter replied, “I consider it imperative.”

  “Very well then, Mr Bairns,” said the judge.

  The lean Mr Bairns gave a hitch to his gown and then clasped it firmly with both hands, as if afraid that it might run away from him.

  “You will appreciate my difficulty,” he addressed Mr Todhunter in a quiet, assured tone. “It may be that you will find some of my questions agitating. If so, perhaps I may rely on you to indicate as much at once, and no doubt my lord will give you a breathing space.”

  Mr Todhunter gave a little bow from his chair in the witness box.

  “I apologise for being . . . er . . . um . . . a nuisance to the Court,” he mumbled, feeling a little agitated already.

  He fixed his eyes firmly on his opponent, nervously determined to be led into no traps. As he very well knew, the crux of the trial had arrived.

  “I will make it as short as possible,” promised Mr Bairns and fixed his eyes on the ceiling as if seeking inspiration there. “Perhaps, if my lord allows me, I can manage to put a great number of separate questions into one collective whole. . . . I suggest to you, then, that you never shot this woman at all; that when you found her she was already dead; and that out of your friendship for the Farroway family you have taken the responsibility for this crime upon your own shoulders, knowing that it could affect you very little since you never expected to live long enough to suffer the penalty for it.”

  Mr Todhunter made an effort to speak, his face turned a horrible pale green colour, his hand flew to his chest, and he slumped forward in his chair.

  The whole court seemed to surge towards him.

  CHAPTER XVII

  Mr Todhunter did not die in the witness box.

  Within a minute or two he had quite recovered and was testily waving away those anxious to assist him. Nevertheless the judge insisted upon adjourning the proceedings for half an hour to give him more time, and Mr Todhunter, protesting loudly, was carried out by two large policemen, while his own doctor, who had been retained to attend every day, danced nervously in the rear.

  “It was touch and go with you that time,” he said candidly when he had Mr Todhunter to himself in a large bare room intended for goodness-knows-what legal purpose. “What made you give way like that?”

  Stretched much against his will on a trestle table, with the doctor’s overcoat under his head, Mr Todhunter grinned feebly.

  “It was what I’ve been afraid of all the time. You see, I can prove that I meant to kill the woman, so far as one can prove that sort of thing; and of course I can prove that I was there that evening. But I don’t see how I can possibly prove that I did kill her. Nor does old Prettiboy. Nor does Chitterwick. Nor does Fuller. Nor does anyone. It was my own damned idiocy in throwing away the bullet no doubt, but there it is. Don’t you see, with that one question the chap’s undermined the whole of the grand case Prettiboy built up? And I’m damned afraid those fools of a jury will go and give me the benefit of the doubt. Or even if they don’t the police will take advantage of it to keep Palmer in gaol for a life sentence. It’s damnable.”

  “All right, all right, don’t get excited. I can’t think why you ever wanted to go and get mixed up with all this murdering business at all,” grumbled the doctor. “You used to be a decent fellow once, Todhunter. Now look at all the trouble you’re giving me.”

  “Don’t think so much of your damned self,” snapped Mr Todhunter.

  “Well, you’re certainly giving plenty of other people trouble too,” agreed the doctor. He concealed a smile. Mr Todhunter was a more satisfactory patient than he knew. He reacted to a small kick in the mental pants as others react to stimulating drugs.

  So at the end of half an hour Mr Todhunter was carried back into court (still protesting at the indignity), feeling as well as ever and relieved to know that the worst was over.

  Mr Bairns gravely apologised for having caused Mr Todhunter distress.

  Mr Todhunter courteously replied that it was nothing.

  The judge asked whether Mr Todhunter felt capable of answering any further questions.

  Mr Todhunter was understood to reply that he was not only capable but anxious to do so.

  Mr Bairns gazed at the ceiling again.

  “As a matter of fact, Mr Todhunter, you never answered my original question. I don’t know whether you would like to do so now.”

  “Certainly,” replied Mr Todhunter with asperity. “The answer to all the suggestions you made is that they are without foundation.”

  “You reject them?”

  “They are untrue.”

  “Yet, if I may say so, they appeared to cause you distress?”

  “They did.”

  “Would you care to explain why?” asked Mr. Bairns, scrutinising the ceiling with such obvious interest that one would have said t
hat he had detected a loose piece which might fall at any moment upon some important head.

  “I should welcome the opportunity,” snapped Mr Todhunter, “if only to obviate any misunderstanding. It was because I can only assert that it was I who killed Miss Norwood; I cannot prove that it was actually my finger that pulled the trigger . . . um . . . inadvertently or not. And it distresses me to consider the possibility of this small loophole being used to save the faces of those who have blundered and to keep an innocent man in prison.”

  A little gasp went up. This was boldness, to admit the flaw and try to turn it to advantage. Sir Ernest looked worried. Boldness often pays with a jury, but perhaps more often it does not. The judge looked doubtful, as if wondering whether Mr Todhunter were not being allowed too much latitude to make speeches. Only Mr Bairns remained interested in apparently nothing but the ceiling.

  “Why did you not go to the police and confess your prime immediately after the shooting then?”

  “I saw no reason to do so.”

  “You preferred to wait until an innocent man had been accused?”

  “It never occurred to me that anyone would be accused?”

  “Yet you knew the police would make investigations?”

  “Investigations, yes; not blunders.”

  “It did not occur to you that persons with perhaps a more obvious motive than yours would be suspected?”

  “I did not think about it. I tried to put the whole thing out of my mind.”

  “You went for a voyage?”

  “Yes.”

  “With what purpose?”

  “I wanted to visit Japan before I . . . um . . . died.”

  “It was of more importance to you to visit Japan than stay and face the consequences of your act?”

  “I anticipated no consequences.” Mr Todhunter would have liked to wipe his forehead but was afraid that such an action would be construed as a sign of another approaching collapse.