Trial and Error Page 27

  “You did not set out on that voyage in relief at having had the murder which you had been meditating performed for you, so that you could enjoy the pleasures of Japan with a clear conscience?”

  “Certainly not.”

  “Your conscience did not worry you?”

  “Not in the least. My . . . um . . . action may have been unorthodox, but I’m still unable to feel that it was anything but beneficial.”

  “I wish to allow you as much latitude as possible, Mr Todhunter, but I really must remind you that witnesses are supposed to confine themselves to answering the question asked and not make speeches.”

  “I beg your pardon.”

  “Not at all. . . . It was only when you heard of Palmer’s arrest that you considered it time to make a clean breast of what you had done?”

  “Yes.”

  “Yet by that time you might well have been dead?”

  “That is so. But I left a memorandum with my solicitor of what I had done, to be given to the police on my death.”

  “Yes, that memorandum has been put in as an exhibit, I believe. Do you agree that it consisted of no more than a series of bare statements?”

  “It was a series of statements of what I had done.”

  “Statements unsupported by a jot of proof?”

  “I considered it contained plenty of proof, and do so still.”

  “What was the attitude of the police when they perused it?”

  “I understand,” replied Mr Todhunter bitterly, “that they laughed at it.”

  “In any case, they took no action on it?”

  “No.”

  “Can you suggest any other reason why they should have taken no action—a body of conscientious public officials—beyond the reason that they considered it a tissue of fabrications?”

  “I’m sure they considered it that.”

  “And yet you thought it good enough to satisfy them in the event of your being no longer alive and able to help them verify it?”

  “I did.”

  “Mr Todhunter, you have been represented to us, by your colleagues on the newspapers and others, as a man of intelligence above the average. I put it to you that, if you had really shot this woman, you would never have remained content with a vague ‘statement,’ which you must have known was incapable of proof, but would have taken steps to make sure that your guilt was established beyond the possibility of any other person coming even under suspicion?”

  “I did not regard my statement as vague nor incapable of proof, and I do not so regard it now.”

  “Do you not agree that your actions after the murder are more consistent with innocence than with guilt, having in view the fact that, as you assert, you had acted only out of the most honourable motives and had nothing to lose by your guilt becoming known?”

  “No, I don’t agree to that.”

  “You think that a man who had planned, mistakenly of course but sincerely, what we may call an honourable assassination, would then run away and leave others to bear the suspicion and possibly, in spite of this ‘statement,’ the blame?”

  “I object to the phrase ‘run away.’ ”

  “Let me put it this way. Do you find the actions of yours which followed the crime consistent with the honourable motive which, you tell us, caused you to plan it?”

  “Perfectly. I may have been stupid, but. . .”

  “I put it to you again—please don’t distress yourself—that the defence which has been raised on your behalf in this court is the truth: that you only toyed with the idea of murder, possibly as an interest for your last weeks on earth sufficiently startling to take your mind off approaching death, but that in your inmost mind you never intended to perform it, knowing yourself incapable of doing so when it came to the point; and that when you heard that another person, belonging to a family for whom you had affection and regard, had committed the very murder which you had only academically planned, you saw that the evidence might be so twisted and distorted as to throw a certain amount of suspicion upon yourself, and so as an honourable and very gallant gentleman you accused yourself of a crime you had never committed?”

  Those who had expected Mr Todhunter to collapse again before this suggestion were disappointed.

  “That is not the case,” replied Mr Todhunter with surprising firmness.

  His ordeal was over.

  2

  Mr Todhunter had occupied the box for the whole morning.

  His doctor would not allow him to go out for lunch, and a covered tray was brought in for him into the bare room.

  Sir Ernest came to him to congratulate him before going out for his own lunch.

  “You came out of that well. Turned the tables on him properly. It was risky, but I think it’ll pay. Otherwise your collapse might have put us in a bit of a fix.”

  “What effect do you think his suggestions will have on the jury?” asked Mr Todhunter anxiously.

  Sir Ernest looked grave. “Impossible to say. I believe they’d like to find you a gallant and honourable gent by their verdict, rather than a murderer.”

  “But that would mean condemning Palmer?”

  “Exactly.”

  “Damn it, I’m not a gallant and honourable gent,” shouted Mr Todhunter passionately.

  “Now, now,” soothed Sir Ernest and made a hurried exit.

  3

  The lean Mr Bairns was the first counsel to address the jury after the lunch recess. He did so with a great display of gratitude to the accused and the accused’s advisers for their noble-mindedness in allowing him the opportunity. But that did not prevent him from going on to put the case as the police saw it with the utmost frankness and conviction.

  His speech consisted chiefly of an amplification of the suggestions contained in his questions to Mr Todhunter, but he made one or two further points. Over the matter of Mr Todhunter’s disposal of the bullet, for instance, Mr Bairns made great play.

  “The accused tells us that he was responsible for this woman’s death, whether willfully or not is of minor importance. Yet there is not a single action of his which is not consistent with his innocence.

  “He tells us that he threw away the fatal bullet out of regard for his own safety. At first hearing, that may sound plausible. I submit that it will not stand examination for one moment.

  “We have heard a great deal about psychology from both my learned friends, and no doubt one must take psychology more or less into account even in a court of law. Very well, what is the psychology of this act of throwing away the bullet? The accused says it is the crude instinct of self-preservation. But self-preservation from what? Compared with the ordinary murderer, the accused had comparatively nothing to fear from the utmost rigour of the law; or so, as he himself tells us, he thought at that time. Why then destroy this valuable, this one and only piece of utterly convincing evidence concerning the identity of the perpetrator?

  “So that he should be free to visit Japan, says the accused. To visit Japan—and leave events to take their own course, innocent people to be suspected and an innocent man to be arrested! No. The only explanation consistent with the psychology which the accused had displayed up to that point is this. He threw away that bullet, not because it came from his own gun, but because it came from someone else’s—someone whose identity he knew, someone whose action he fully approved, someone whom he was determined to protect at all costs. That, gentleman, in my submission, was why the accused threw away that damning bullet.”

  Mr Todhunter cast an uneasy glance at Sir Ernest. The argument had upset him. But Sir Ernest was hunched up into a rotund lump of indifference, and his eye was not visible to be caught.

  To Mr Todhunter’s increasing discomfiture, Mr Bairns was pulling another cat down from the ceiling.

  “I said that there was not a single action of the accused which cannot be interpreted as that of an innocent man, even the most trivial. Take for instance the matter of the exchange of revolvers, which Mr Todhunter intended to effect and
which he apparently at one time thought had been effected. What was the object of this exchange? We know what had preceded it: careful questions to ascertain that there was a revolver in the flat at that moment, and that Palmer, the Farroway son-in-law, had brought it thither at a curiously early hour that same morning.

  “What did he do then? He asked to see it. And what did he see? That Palmer’s revolver was of identical pattern with his own, both old army revolvers of standard make. It would be outside my province perhaps to speculate upon what action the accused might have taken at this point, had the revolvers proved of a different pattern, or to suggest that he would have carried Palmer’s away to dispose of it as he had disposed of the bullet. What he did do was to attempt to carry Palmer’s away even then by substituting his own for it.

  “That is not his own explanation. What the accused says is that his object was to leave his own revolver there. I suggest that it was nothing of the sort; that his true object was to carry Palmer’s away.

  “Why did he wish to do this? Was it to throw it into the river as he had thrown the bullet? I think not. The revolver, which he still believed to be Palmer’s, was left behind in a drawer when he went on his cruise abroad. It could be produced if and when it was needed. What was the object of this manoeuvering? The accused has told us that he knew nothing about firearms. Is it not then probable that he knew nothing of the numbering of firearms? That he was totally ignorant that every rifle, every revolver carries its own distinctive number, by which it can always be identified without possibility of error or disguise?

  “I suggest that the idea in his mind, when he thought he was making the exchange of revolvers, was that Palmer’s revolver should be mistaken afterwards for his, and his for Palmer’s. Neither you nor I would be likely to make such an error; but I submit that it is exactly the kind of blunder which a recluse, a man of letters, a man totally ignorant of everything that concerns firearms would make.

  “What then might have been the reason for this exchange of revolvers that the accused tried to make? If my explanation is right, it would be that there was something incriminating about Palmer’s revolver, and equally, something innocent about his own. What could that have been? It could not be anything to do with the markings on the bullet, for that had been disposed of. I suggest it was the damning fact that Palmer’s revolver had been recently fired and the accused’s had not. That, and that alone, in my submission is the only possible explanation of this mysterious attempt at exchanging revolvers. To suggest, as the accused does, that the object was to plant incriminating evidence upon the very family with whom he was so friendly and whom he wished so much to protect, is simply to strike the word ‘psychology’ out of the dictionary—it would mean nothing.”

  Mr Todhunter stifled a groan. This was terrible, terrible. It had been a mistake to let the man come here; a mistake that might well prove fatal. Who could help being convinced by such diabolical ingenuity?

  But there was even worse to come.

  Mr Bairns was now addressing the judge.

  “My lord, as I have explained, I have no standing in this case at all. I am here only by the indulgence of the other parties. In consequence I have not asked for the extended privilege either of cross-examining witnesses other than the accused or of calling any evidence of a rebutting nature. But I think that the object in the mind of every person now in this court—with, I am compelled to add, possibly one exception—is to get at the truth and that only.

  “I wish therefore to make a request which your lordship will realise is highly irregular at this stage. I would ask first your lordship’s indulgence and after that the permission of my learned friends on both sides to recall one witness who has already appeared, Detective Sergeant Mathers, and then to call two witnesses of my own. I would not make such a request did I not feel that the one or two questions I wish to put to these witnesses would not establish a fact, not yet before the Court, of such significance that it may well solve this baffling riddle by itself.”

  The judge stroked his lean old cheek. “You assure me that this evidence is as important as that?”

  “I do, my lord.”

  “Very well. What does Sir Ernest Prettiboy say?”

  Sir Ernest Prettiboy was in a dilemma, but he could hardly proclaim himself as one not anxious to get at the truth.

  “I have no objection at all, my lord.”

  “And you, Mr Jamieson?”

  Mr Jamieson was whispering to his client over the dock rail. He turned back to the judge.

  “My client welcomes any evidence that my learned friend would care to bring. Like the rest of us, he is anxious to serve the ends of justice only.”

  This was not strictly true, for in reply to Mr Jamieson’s whispered question, Mr Todhunter had replied with a ghastly grin that he had not the faintest idea what could be in Mr Bairns’s mind but would not put it past him to fake a bit of evidence if it suited his book; a suggestion at which Mr Jamison had looked properly shocked.

  Amid an expectant hush Sergeant Mathers was recalled to the box.

  “When you accompanied the accused back to his house after his visit to Scotland Yard last November, did he show you a revolver?”

  “He did.”

  “Did you examine it?”

  “I did.”

  “What did you find?”

  “That it was a brand-new one.”

  “What do you mean by that?”

  “It had never been fired.”

  “You are sure of that?”

  “Quite sure.”

  “How could you tell it had never been fired?”

  “I examined the inside of the barrel. It was coated with oldish, dried oil. Where there was no oil the barrel showed quite smooth.”

  “How long would you estimate that the oil had been there?”

  “It had been there some months, by the look of it.”

  “What would you have expected to find if the gun had been fired recently? Say within the last few weeks?”

  “Oil not so old as that and I should have expected to see signs of striation on the exposed portions of the barrel and possibly lead fouling.” This was damning evidence, and Sir Ernest, when he rose to cross-examine, might well have wished that he was in the United States, where a recess of an hour or two would have been granted as a matter of course to enable counsel to consider how to tackle the witness. As it was, Sir Ernest had to rely on a hazy knowledge of firearms left over from the last war and his native wit.

  “You are the Scotland Yard expert on firearms, Sergeant Mathers?” he began with a kindly smile.

  “No Sir”

  “You are not?” Sir Ernest appeared surprised. “But you are an expert?”

  “Not an expert. I have a working knowledge of firearms.”

  “Well, most of us have that. In what way does your knowledge exceed that of the ordinary person?”

  “I’ve been through a course on the subject, as part of my training.”

  “And that course, though it did not make you an expert, enabled you to pronounce, after a casual examination, just how long ago a gun was fired or not?”

  “It enabled me to tell when a gun had not been fired.”

  “Did you take this revolver to pieces to examine it?”

  “No.”

  “Did you examine it with a lens?”

  “No.”

  “Did you examine it at all, or did you merely glance at it?”

  “I examined it as much as I thought necessary.”

  “In other words, you just glanced down the barrel?”

  “No.”

  “You didn’t even glance down the barrel?”

  “I looked very carefully down the barrel.”

  “Oh, I see. So carefully and with such good eye sight that you were able to detect the absence of lead fouling and striatums on the barrel, which a lens is usually required to detect?”

  “I was satisfied with my examination.”

  “No doubt, but perhaps I am
not. I want to get this quite clear. Did you really look for such things as striations and lead fouling at all, or did you just look down the barrel and think to yourself, there is dry oil here, so the gun can’t have been fired?”

  “It was clear to me that the gun had not been fired.”

  “That is not an answer to my question, but never mind. We will pass that over. Now, I understand you to have said, Sergeant, not ‘This gun has not been fired recently,’ but ‘This gun has never been fired.’ The presence of dry oil would have nothing to do with the gun having been fired or not fired years ago. How do you account for that?”

  “Enquiries I made showed me that the gun had never been fired.”

  “Enquiries of whom?”

  “Of the gunsmith who sold it.”

  “These enquiries showed you that, when the gun passed into Mr Todhunter’s possession, it was brand new?”

  “Not exactly brand new.”

  “But you told my learned friend that it was brand new.”

  “I should like to qualify that. It was brand new insofar as it had never been fired,” replied the sergeant stolidly, “but it was an oldish gun.”

  “An old, rusty gun is hardly a brand-new one.”

  “It was not rusty.”

  “Oh, it wasn’t? We’ll come back to that in a minute. It was an old war gun that never saw active service? Is that what you mean?”

  ‘That’s what I mean.”

  “That makes it twenty years old. Yet it was not rusty.”

  “It had been carefully kept.”

  “Will old, dry oil prevent rust?”

  “I couldn’t say.”

  “But you’re the expert?”

  “Not on oils.”

  “But isn’t the care of firearms, which involves oils, an important part of the subject?”

  “I have no specialised knowledge.”

  “I should not have thought that specialised knowledge was required to show that old, useless oil will hardly prevent rust. Yet you say there was no rust in this revolver. The barrel, where it could be seen, was quite clean and shiny?”

  “So far as I remember.”