Trial and Error Page 29

  To make the episode more striking still, the jury had heard a witness who testified to the fact that she had heard a sound very like a shot coming from the direction of the summerhouse on a certain night and another witness who was in a position to swear that on that same night the accused had a light in his house at an hour which was unusual—which at least meant that he was awake, if not up and about. It was all very well to suggest other explanations for these facts: the facts remained.

  What was the inference from them? Why, surely that Mr Todhunter’s story of the second bullet was false. It had not been fired so far back as last September. It had been fired in December. By that time Mr Todhunter, who apparently had believed at one time that he had only to go to the police and accuse himself of any crime in order to be instantly arrested, had realised that there was simply no case against him at all. He had therefore set to and manufactured one. The first requisite in such a case was obviously a bullet fired from his own gun. He had therefore gone, at some time just before midnight on the second of December and fired one. And no doubt on the same journey he made those traces of his progress across the gardens which were solemnly discovered the next morning. And on this next morning, too, in the presence of two witnesses, he conveniently “remembered” that second shot. Was not this a far more probable explanation, supported as it was by direct evidence, than the wild assertions of the accused—or the self-accused, perhaps he should be called? It had the advantage, too, of explaining those useful footmarks, broken twigs and so forth duly noted by the two witnesses on the trail across the gardens. For otherwise was it not contrary to all reason and experience to believe that such a trail could persist, in this country of all countries, for months and through the rain and ravage of an English winter? Hardly!

  Examine Mr Todhunter’s story. It is all assertions. There is no proof of a single item. Take an instance at random. Take the throwing away of the one piece of incontrovertible evidence, the fatal bullet. Mr Todhunter says he threw it away himself. But we have only his word for it. And it is a word upon which, in the circumstances, we cannot rely. We have noted already how extraordinary such an action was, but we only questioned the motive, not the action itself. Question that action and what do we find? Why, that the probability is that it existed only in Mr Todhunter’s generous imagination; that he never threw any bullet away himself, but that he did know that one had been thrown—knew who had thrown it—may even have seen it thrown. Proof . . . proof, that was what was needed in a court of law, and that was just what was lacking in this fantastic case of self-accusation—the most fantastic, Mr Bairns ventured to say, that had ever been known in any British court.

  Note how the self-accused had changed his story. He admits himself that the story with which he went to the police in the first place was untrue. Why was it untrue? Because he thought it would sound more plausible than the truth. Is that not the clue to the whole riddle? When a plausible explanation is required upon any point, there is Mr Todhunter all ready with it. But that does not mean that it is the truth. And when you ask for proof, the answer invariably is: “There is no proof. You must believe what I say.” That is no way to present a case which anyone can take seriously.

  And so on. And so forth.

  Mr Todhunter had given up listening long ago. His hands held firmly over his ears, he huddled on his chair in the lonely dock, abandoned to despair. There was no use trying even to keep up appearances. The case was lost. The man Bairns had given it away with both hands. Palmer was doomed.

  When Sir Ernest rose to make the concluding speech for the prosecution, Mr Todhunter did not even look up. Sir Ernest was a good man, but not the best man in the world could cope with that kind of thing, with all the weight of police prestige behind it.

  2

  Sir Ernest, however, did not seem to realise the impossibility of his task. His air as he began was positively jaunty.

  “May it please your lordship. Members of the jury. There is no need for me to emphasise the remarkable nature of this case. It is unique in the annals of British justice in more than one respect, but not least in this: that prosecution and defence are substantially at one on the main issue, that is to say, upon the question of whose finger actually pulled the fatal trigger, and are united against an intervening party who has, properly speaking, no standing in this court at all. But it was felt right that the case should be put before you for a verdict for which neither I nor my friend Mr Jamieson ask, that is to say, the verdict of not guilty; and I am bound to add that counsel who has just addressed you put that case as well and as cogently as such a case could be put. His ingenuity must have been as apparent to you as it was to me.

  “But it was only ingenuity. He says, for instance, that the case for the prosecution rests merely on the assertions of the accused himself, that there is not an iota of real proof for a single item of it, that every action which the accused admits is open to two interpretations. But apply those same strictures to the case against Vincent Palmer as it was presented in another court. Do they not apply even more forcibly there? You have read the evidence in that case. Was there an atom of real proof that Palmer ever committed this crime? I submit that there was not one single atom. The case against Palmer consisted of nothing but inferences from beginning to end. Would my friend Mr Bairns then say that inferences made by the police are admissible, but inferences and assertions made by a private individual are nothing but nonsense? I am sure he would not. Yet that is, logically speaking, what seems to have been the main plank of his platform.

  “But in accusing the man now in the dock of having committed this crime we do not by any means, as my friend Mr Bairns has suggested, rely on his assertions alone. My friend says we have no evidence. I retort that we have overwhelming evidence. You have heard that evidence. It is for you to say whether it was not as much stronger as the weak stuff that passed for evidence against the young man Palmer as champagne is stronger than ginger wine.

  “Let me remind you again of the course of events which has brought the accused to this unhappy situation, just as you heard it in logical sequence from the mouths of witnesses who testified to its truth.”

  Sir Ernest then spent an hour and a quarter in painting the picture again of Mr Todhunter’s temptation and fall, and the colours which he laid on it were of the richest.

  As he listened Mr Todhunter’s attitude changed. Higher and higher rose his little bald head, down dropped his hands, his back straightened, an incredulous smile appeared unwittingly upon his face, hope began to spring once more within his bony breast. For Sir Ernest was wielding the brush of an artist. To hear him, even Mr Todhunter began to realise once more that he was a villain of the deepest dye.

  He stole a look at the jury and caught the eye of a fat tradesman in a check suit. The fat tradesman looked hastily away. Mr Todhunter nearly cackled out loud in glee.

  Gradually Sir Ernest approached his climax.

  “Was it the finger of the accused that tightened round the trigger which fired the fatal shot? That is the real issue of this case. You may feel that the motives which prompted the action were of an intolerable presumption, or you may feel that they were not altogether ignoble. You must pay no attention to either. You are the judges of fact, not motive, and you must deliver your verdict accordingly. It is my duty to suggest to you that his action was deliberate; my friend for the defence will contend that it was, at the last moment, no more than what might be regarded as a culpable accident.

  “But you have not to decide merely between us. At this moment another man lies under sentence of death for this crime. You have seen him in the box; you can judge his demeanour for yourselves. You have heard the arguments and the reasons upon which this man was condemned; you have heard the present accused tell what we put to you as the real story of this terrible crime, and you have heard him recount the efforts, the truly desperate efforts he has made to right a great wrong.

  “For in the contention that a terrible legal blunder has been commi
tted my friend for the defence and I are united. We would impress it upon you with all the earnestness at our command. We ask you to assess the tortuous arguments and the subtle twistings of fact, which you have heard put forward on behalf of the police, at their true value; we ask you to accept the simple, not the complicated explanation.

  “The man now sitting on the dock bears a terrible responsibility. We counsel share it with him. He cannot speak to you for himself; he relies upon us to convince you of the truth. For, whatever may be said of his earlier action, ever since he heard that an innocent man had been accused of the crime which he has told you he committed, Mr Todhunter’s conduct has been irreproachable. So vehement indeed have been his efforts to set right this wrong that counsel for the police referred to him as an old friend of the family which he is trying to save. That is not so. As you have heard, they are almost strangers to him. He had met the man who has been condemned elsewhere only twice in his life, and only for a few minutes each time. There is no such altruism here as has been suggested. Mr Todhunter is not trying to lay down his life for a friend. But his aim is no less great. He has only a few weeks—it may be only a few days—to live. Every hour of those weeks, every minute of those days he is devoting to putting this terrible blunder right; do you see that when his time comes to die, he will not have to perish in the dreadful misery of knowing that another man must suffer for the crime that was his.

  “Members of the jury, my responsibility has ended. It is passing to you. In your hands you hold the fate, not of one man, but two. May heaven guide you to deliver a true judgment.”

  Sir Ernest’s voice broke as he uttered the last words. He stood for a few moments looking intently at the jury. Then he sat down.

  The court adjourned for the midday recess in a silence that was perhaps the most genuine tribute that Sir Ernest had ever received.

  3

  Mr Todhunter believed Sir Ernest worthy of any tribute that human man could bestow on him.

  “That was the finest speech I’ve ever heard in any law court,” he told him as they left the court side by side. Mr Todhunter had never heard a speech in a law court before.

  “Ah, but we’re not out of the wood yet,” twinkled Sir Ernest, quite himself again. “Did you notice the judge? There was a nasty look in the old bird’s eye just as I was getting on the jury’s soft side. I didn’t like the look of it at all.”

  “I think we’re fairly safe now,” opined Mr Todhunter, who was not usually given to optimism. “What do you say, Chitterwick?”

  “I think,” said Mr Chitterwick carefully, “that we’ve been very lucky in our counsel.”

  “I’ll buy you a drink for that,” said Sir Ernest jovially. “Go on back to your private dining room, Todhunter. You know you can’t be in on this.”

  4

  The first twenty minutes after lunch were occupied by some gallant efforts on the part of Mr Jamieson to make bricks without straw.

  There was little he could say, for he had no case at all; and in the end, after identifying himself with all the pertinent observations of his learned friend for the prosecution and throwing a few stones at the head of the absent Mr Bairns, Mr Jamieson could do little more than appeal to the jury to find Mr Todhunter guilty of manslaughter only and not murder, on the rather inadequate ground that it would be a bit of a shame to hang him.

  Then, at last, the judge began to sum up.

  “Members of the jury,” he said in a voice thin with age but perfectly clear, “it now becomes my duty to go through with you the evidence that has been given in this case; a case which, as counsel have pointed out, is possibly unique in these courts. Another man, as you know, is now lying under sentence of death for this same crime; and it is in order to save this man, believing him to be innocent, that Mr Furze has told us he has brought this action for murder. There is no reason to doubt Mr Furze’s motives or to suggest that he has not been actuated by anything but the highest principles; and it is only right to pay tribute to the disinterestedness and public spirit that he has shown. Whether he was right in his belief or not is now for you to decide.

  “It makes no difference to you that this case has been brought at the instigation of a private citizen and not, as is almost invariably so in a case of this importance, by the Crown. Nevertheless it is right that you should ask yourselves why the Crown did not bring it and why the proper authorities, although in possession of all the evidence and statements that you have heard, did not see fit to act upon them—or perhaps I should say, saw fit not to act upon them. As their counsel, Mr Bairns, has pointed out to you a mere confession alone is not enough to require action. Instances of false confession are not rare in criminal history. They may be made from varying motives, from insanity to a desire to shield the guilty; and often they are repudiated once the guilty person is safe. You will therefore not be too strongly influenced by the confession which the accused in this instance has made but will decide the case solely on the evidence which has been brought to substantiate that confession.

  “I will now review that evidence for you, and in view of the importance of the case, I shall do so in some detail.”

  The judge was as good as his word. He reviewed the evidence, slowly, methodically and quite fairly, for the rest of that afternoon and at once resumed the task when the Court assembled again the next morning.

  As he listened to the ancient voice droning on Mr Todhunter went through a fine range of emotions.

  The evidence, heard through this calm, dispassionate voice, somehow sounded far less imposing than when rolled forth in Sir Ernest’s robust periods. In fact it sounded uncommonly thin. There was plenty of evidence of intention but none of performance. Mr Todhunter, who had realised this well enough but somehow had persuaded himself that it did not much matter, grew more and more perturbed. It was impossible to say that the judge was minimising it in any way, yet the effect was of minimisation. Mr Todhunter realised, with some disquiet, how much any case owes to oratory in the presenting of it.

  One passage in the summing up which occurred fairly early that morning increased his disquiet. The judge had been dealing with the evidence that pointed to Mr Todhunter having been on the scene of the crime after, rather than before, the death. He paused for a moment or two and then added:

  “In this connection I ought to warn you that, even should you find the present accused guilty, that is not necessarily to determine that the verdict rendered in the previous case was an incorrect one. There is a possibility which I think has not been put before you at all but which nevertheless you must consider: whether Palmer and Todhunter were not acting in conjunction. There is no evidence to show that they were, but equally there is no evidence to show that they were not. It is a possibility which you must bear in mind, and I mention it lest you might be tempted for sentimental reasons to bring in the verdict of guilty in this case with the idea of perhaps saving the life of a young and vigorous man at the expense of one which is doomed in any case. That would be a most improper feeling, and I am sure you will not allow it to influence you. Nor, as I must warn you, if you did, would it necessarily have the effect intended.”

  Mr Todhunter was perturbed. Perhaps he had been relying too much on just such a sentiment and its unconscious influence on the minds of the jury. He had certainly been relying on a verdict of guilty in his own case to establish, as an inescapable corollary, the innocence of Palmer. Yet now it seemed that through such a technical and unfair little loophole the authorities would still be enabled to keep their grip on that unfortunate young man.

  Mr Todhunter wanted to get up and shout:

  “He is innocent! Cut the cackle and come down to truth. I tell you he is innocent—I, who have the best of reasons to know it.”

  It was true enough that Mr Todhunter, almost alone in the world, had the best of reasons to know that Palmer was innocent; but it was proving a difficult job to convince other people of that simple truth. Mr Todhunter wished that a fact could stand up as hard and solid
as a block of granite so that no one could dispute it.

  It was, however, not until the judge came to the end of his summing up that Mr Todhunter simultaneously arrived at the end of his tether.

  Up to that point the judge had really behaved very well indeed. Refraining from the temptation to tell other people how to live their lives in accordance with the law books, which few judges ever seem able to resist, he had confined himself strictly to the matter in hand. But in the end he succumbed; and, as usual, his last words might have suggested that he was set up in that exalted position to be a judge, not of law, but of morals and ethics.

  “Members of the jury, it may be that some of you have had in mind yet another verdict, which has not been suggested to you at all. I refer to the verdict of ‘guilty but insane.’ It is customary for judges to indicate, when the defence has suggested such a verdict, whether it would be admissible on the facts of the case. In case therefore any of you were meditating a verdict of this nature, I feel it advisable to tell you that in the absence of all evidence on the point such a verdict would be quite inadmissible. It has in fact, quite properly, not been suggested by the defence; and I only mention the matter because you may think that the very nature of the accused’s admissions seem to indicate some degree of insanity.

  “You may indeed feel that the intolerable presumption to which he has admitted, and in which he seems to glory, of setting himself up as a judge of life and death over his fellow men, may show a degree of megalomania amounting to insanity. But the law defines insanity very closely, and it is quite certain that the accused throughout realised exactly what he was doing or intending to do; and that is the crux of the matter.

  “In the same way you must be on your guard against allowing your disgust for him—the disgust which all right-minded persons must feel—to influence your decision. If you feel that the case against him has not been made out, it is your duty to return a verdict of not guilty, irrespective of the contempt and loathing with which his cold-blooded machinations may have inspired you. That he was at one time meditating some kind of senseless, imbecile assassination of some quite innocent person, there is the evidence which I have gone through already; you must decide whether the wild talk in which he seems to have indulged was merely raving to impress his friends or whether there was a sinister substratum of intention