THE JUDGE.
When evidence is called on behalf of the prisoner, counsel for the
prosecution enjoys the right of reply. This right young Pollard rose
to exercise, and, as is often the case with beginners at the Bar, he
did much better as a speaker than he had done as an examiner.
As soon as he was fairly on his feet, his leader came into court and
took his seat. The other case in which he had been engaged had come to
an end shortly before this, but Prescott had purposely lingered
outside, so as to avoid the duty of replying, which would have been
assigned to him had he returned in time. As he had heard nothing of
the case, nor of Tressamer's defence, the course he adopted was the
best even for the interests of the prosecution--in fact, it was the
course usually followed under parallel circumstances.
The first part of Pollard's reply was simply a recapitulation of the
evidence. Afterwards he made an attempt to answer the attack on Lewis.
'Gentlemen,' he said, 'my learned friend has practically charged Mr.
Lewis with this murder. On what grounds has he done so? What evidence
has he brought against Mr. Lewis? Mr. Lewis is the heir of the
deceased, it is true, but then he is her nephew. When he came back
from Australia, he went at once to see her. He has told you, in answer
to my questions, that this was out of gratitude to her for her
kindness to him when he was a young man. There is nothing suspicious,
therefore, in his going to her before his sister, who lived in the
North of England, moreover, probably a long way off.
'Then my learned friend has laid stress on the fact that this crime
occurred the night of his arrival. But I submit, gentlemen, that it
would have been more natural if he had abstained from it the first
night, and done it some time after, if he did it at all. I might
suggest to you that the prisoner did it the night Mr. Lewis arrived
on purpose to throw suspicion on him.'
And so on. Finally he closed in a form of words which even the most
inexperienced prosecutor has by heart.
'In conclusion, gentlemen, I ask you to banish from your minds every
trace of prejudice, and to forget everything which you have read
elsewhere about this case, and to determine it solely on what has
passed here to-day. If the evidence you have heard leaves a fair and
reasonable doubt in your minds as to the prisoner's guilt, no doubt
you will acquit her; but if that evidence is so strong and convincing
that you are morally satisfied that the deceased woman met her death
at the prisoner's hands, then it is your duty to return a verdict of
guilty.'
With this he sat down, and his brother leant over and congratulated
him, while the other solicitors began to consider whether there might
not be something in the young man after all.
And now it was Sir Daniel Buller's turn, and all eyes were directed
upon him as he settled himself in his chair, with his face towards the
jury, who strove to catch his lordship's eye, and conveyed as much
appreciation as possible into their faces.
'Gentlemen of the jury, it now becomes my duty to recall your
attention to the facts of this case, and to give you what assistance I
can towards finding your verdict. You have been told by counsel on
both sides that this is a grave and important case. Gentlemen, every
case which comes before a criminal court is grave and important. In
this case, it is true, the life of a fellow creature is at stake, but
that consideration ought not to affect you one way or the other in
bringing to bear upon the evidence before you that impartiality and
cautious discrimination which it is the duty of a jury to apply
indifferently to every matter that may come before them.'
A slight sensation of relief in the jury-box. Among the audience an
impression that his lordship is going against the prisoner.
'The duties of a jury in a case like this are exceedingly simple, but
perhaps it may be advisable that I should briefly remind you in what
they consist. And, first of all, it is, I am sure, unnecessary for me
to insist on the absolute necessity of your resolutely putting out
of your minds every particle of knowledge, and every impression of
whatever kind, which you may have collected in regard to this case
from sources external to the inquiry conducted here to-day. It is, I
feel, equally superfluous for me to caution you against attaching the
smallest weight to any evidence which I was compelled in the course
of this case to exclude. The law of evidence is the accumulated
experience of the ablest intellects that have adorned that Bench of
which I am so unworthy an occupant.' (Strong impulse on part of jury
to murmur 'No,' manfully suppressed.) 'And in applying it I can only
say that I have never personally laboured under any hesitation as to
its general soundness, though I may occasionally doubt as to its
applicability to particular instances.
'You will remember that allusion was made by the prosecution in their
opening to the supposed existence of certain valuables, the property
of the deceased. It is my duty to tell you, speaking as judge in this
case, with all the evidence before me, that there is not sufficient
evidence that any such valuables were in the deceased's possession at
the time when she came to her unhappy end, and that in any case there
is not a particle of evidence that the prisoner had ever heard, or was
even remotely aware, of the existence of the articles in question.
'Whether they were there or no is, of course, immaterial to the case.
The jeweller, whose name, I believe, was John--Thomas--no----'
'William Williams, my lord,' called out Pollard.
'Ah, thank you, Mr. Pollard! But it is of no consequence, because, as
I am explaining to you, gentlemen, his evidence really ought not to
affect your minds one way or the other. Even if deceased bought these
things, there is no evidence that she kept them by her. She may have
disposed of them in some manner of which we know nothing. The fact
that they have been missing since her decease affords in itself some
ground for supposing that she did so part with the control over this
property. But, as I must repeat, what became of it is perfectly
immaterial, because there is absolutely nothing in the whole of the
evidence before us, and by which we must be guided, to fix the
prisoner with knowledge that these valuables existed at all.
'You will observe, gentlemen, how important this becomes when we
come to consider the question of motive. I agree with Mr. Tressamer,
about whose general line of defence I shall have something to
say presently'--(Tressamer frowned, the rest of the Bar looked
nervous)--'in saying that the apparent absence of motive is the most
inexplicable feature in the case for the prosecution. You will, of
course, have fresh in your minds the evidence of the servant on this
point.' (The jury found it quite hopeless to even pretend that they
had anything of the sort.) 'I refer to her statement, which I will
read to you presently'--(visible depression in the jury-box and
throughout the court)--'that deceased promised the prisoner on one
occasion to leave her a legacy, or something of that sort. Gentlemen,
that is peculiarly and emphatically a matter for you to deal with, and
on which it would be out of place for me to offer you any guidance
whatever.' (Dismay among several jurymen, stolid pride among others.)
'If you believe that evidence, and I confess I am wholly unable to
follow the prisoner's counsel in some of his comments upon the general
demeanour of the witnesses, most of whom appeared to me to give their
evidence with every appearance of impartiality, and in a manner which
showed that they realised their responsibility--but all that, again,
is rather a matter for you than for me--if, I say, you believe that
evidence as to the legacy, you must consider for yourselves what
weight you ought fairly to attach to it, and how far in your opinion
it furnishes a motive adequate to inspire the very heinous crime into
which we are now inquiring.'
The jury by this time were fairly at sea. They could not for the life
of them make out which side his lordship was taking, and, of course,
it never once occurred to them that he was trying to avoid taking any
side at all.
'And now, gentlemen, to consider the evidence against the prisoner
more in detail.' (Suppressed sighs from the gentlemen.) 'This is
one of those cases which depend entirely on what is commonly known
as circumstantial evidence. Well, gentlemen, the evidence of
circumstances is just as good as any other evidence, and very often it
is far more reliable and far less subject to be vitiated by improper
influences than ocular and oral testimony. In cases of this kind it
is seldom that we can get anything but circumstantial evidence. When
a man is going to do a wicked and criminal act he does not call
witnesses around him. No, he avoids all human sight, he perpetrates
his deed in secrecy, and all that we can do is to seek to penetrate
the mystery by such means as are at our disposal.'
Impression confirmed that judge is against the prisoner. Tressamer
looking slightly anxious.
'The question for us, therefore, or rather for you, gentlemen'--(the
jury look important)--'is not whether the evidence is circumstantial
or not, but whether it is sufficient to convict the prisoner.
Sufficient, that is, in your opinion, as men of intelligence and
firmness, bringing to bear on this case the same qualities of mind
which you bring to bear from day to day upon your ordinary avocations,
whatever those may be. That the evidence is sufficient in law I am
reluctantly compelled to decide. Whether the court which deals with
points of this description will confirm my judgment or overrule it I
cannot say. In the meantime, you must take it from me that you are
legally justified in convicting the prisoner. Whether you are really
justified on the facts is, of course, a very different question.'
Impression among many that judge is going for acquittal. Jury still in
doubt.
'This is one of those cases which make a judge congratulate himself
on the existence of trial by jury. It is one of those peculiarly
difficult cases in which the mind is perplexed between its desire
to mete out punishment for a singularly atrocious crime, and its
inability to disentangle the knotted skein of mystery which shrouds
the whole circumstances of the affair. I rejoice unaffectedly that the
responsibility of discharging this delicate and dangerous task is
thrown not upon my shoulders, but upon yours.'
Undisguised dismay of jury. They cast appealing looks round the court
and meet nothing but contempt. The general feeling now is that the
judge is in the prisoner's favour. By this time the majority of those
present share the same view.
Then Sir Daniel proceeded to go into the evidence at great length,
reading passages here and there from his notes. When he came to the
evidence of the servant Rees, he threw out a suggestion which struck
doubt into many a mind which had till then believed in the prisoner's
innocence.
'A very great deal in this case undoubtedly turns on this evidence as
to footsteps. You may, I think, take it as admitted on all hands, by
the prisoner's counsel as well as by the prosecution, that the witness
is correct in saying that she heard the prisoner leave the house. That
she recognised her walk correctly that time there can be no manner of
doubt. Then we come to the second time, when she heard footsteps
ascending the stairs. And I may pause here to remark that I think a
quite exaggerated importance has been attached to the discrepancy
between the witness's ideas of time and the correct idea. Gentlemen,
we should all of us fail if we strove to indicate with accuracy the
length of a given interval of time. We use the expressions "five
minutes" and "ten minutes" in ordinary conversation, without attaching
any very definite meaning to them, and, therefore, I cannot see that
the witness is in any way discredited if she mistook a period of three
minutes for one of ten, or _vice versâ_.'
The jury nodded approval. Now they were on firm ground.
'But it is her answer to Mr. Pollard, when he asked her as to the
second set of footsteps, that I wish to draw your attention to.
She said, as I took it, "I did not notice them"--that is, the
footsteps--"but I think they must have been Miss Owen's, or else I
should have noticed the difference." Now, I think you will see the
importance of that.' (The jury try to see it, and, failing in that,
try to look as if they saw it, and fail a second time.) 'Remember the
state of things is this: the witness is wide awake; she has just been
down to the front-door and up again, and ten minutes after, or three
minutes only according to Mr. Tressamer, she hears someone come in and
walk upstairs. Now, gentlemen, under those circumstances, one would
naturally expect the witness to be on the alert to distinguish any
difference, if difference there were, between the footsteps. And if
the person entering the second time were not the prisoner, to whose
tread she was accustomed, and which she was expecting to hear, but if
it were someone else--a man, let us say, with an entirely different
tread, and a tread to which she was wholly unaccustomed--I say one
would naturally expect the witness to note the difference instantly,
to wonder who it was that had entered, to feel alarm when she heard
the unknown stranger proceeding upstairs and into the bedroom; and, in
short, one would expect her to get up and rouse the whole household to
discover the robber, as she would naturally assume him to be.'
The jury were much impressed. A feeling of gravity spread all over the
court. In the prisoner's mind there was a sensation as if the sun had
retired behind a cloud, leaving a leaden atmosphere all round her.
'Leaving you to attach much or little importance, as you please, to
that observation' (jury puzzled again), 'I will pass on to the point
about which so much has been said--namely, the latch.' (Jury bend
forward with straining ears. They have felt this to be the difficulty
all along, and are anxiously desiring to be told what it all means,
and what bearing it has on the case.) 'This latch, or rather lock,
appears to have been of peculiar, though not unusual, construction. As
you doubtless know, gentlemen, locks do differ very much from one
another, and it is essential to their usefulness that they should do
so. If all the locks on our doors were of the same pattern, one key
would open them all, and consequently the locks would be rendered
useless for the purpose for which they were designed. In ancient
times, before such articles had come into common use, it was no doubt
the custom to have a rude species of door-fastening, calculated rather
to keep the door fixed in its place as against the violence of the
weather, than to furnish any obstacle against the ingress of undesired
visitors. But, gentlemen, we are not living in those times, but in our
own; and we are here to administer justice, not with regard to the
ideas prevalent among our remote ancestors, but with regard to the
ordinary and reasonable practices of everyday life around us.'
This last part appeals to the jury. They nod their heads in approval,
and wait for further enlightenment.
'Law, gentlemen, it has often been said, is common-sense; and though
there may be a sense in which that maxim is not strictly verifiable,
yet in a broad and general way its applicability has never been and
cannot be disputed. And, therefore, gentlemen, your common-sense
will agree with me when I say that it is a lawful presumption--a
presumption which the law warrants you in drawing and in holding till
you have some satisfactory evidence to rebut it--that the person who
obtains access to a house or any other building secured by a lock of
this description must have in his or her possession a key which is
capable of opening that lock.'
Continued approval of the jury. They find his lordship a little
tedious perhaps, but sound. At last there seems a fair prospect of
light being thrown upon the case.
'Now, that there were in existence keys which fitted this particular
lock cannot, I think, be seriously doubted by anyone who has listened
carefully to the evidence which has been put forward both by the
prosecution and by the defence in this case.' (Gratification of jury.
How simple it all seems when a master-mind is at work upon the
apparent mystery!) 'The only question left for you to decide, so far
as I can discover, and if I am wrong it is not for want of careful
consideration, is this: whether on that night into which we are
inquiring the prisoner had or had not a latchkey, and, if so, whether
she used it, and in either case, whether any other person had a
similar key, which he also employed in opening the door of this
house.' (Jury getting slightly fogged again. But they no longer sorrow
as one who hath no hope. They rely on his lordship to pull them
through.)
'It is perhaps a circumstance worth noting, though the explanation
may be very simple, that neither side has produced a latchkey
purporting to be one of those belonging to the latch in question.'
(The explanation _was_ simple. Neither side had thought of it.) 'But
in the absence of any ocular demonstration one way or the other, we
are, I think, justified in assuming that the keys in question were
small, portable articles, such as could conveniently be carried in the
pocket. In saying this I merely appeal to your own experience as men
of business and householders, who are most of you probably in the
constant habit of carrying articles of this kind yourselves.' (Jury in
smooth water again. How could they ever have thought this matter
presented difficulties?) 'There, gentlemen, I must leave you. I can
throw no farther light upon the hidden circumstances of that night,
and must leave you to decide for yourselves on a calm and deliberate
review of the evidence whether, in your opinion, such a key as I have
indicated was, or was not, in the possession of the prisoner at the
bar, or of any other individual whose name has or has not transpired
in the course of this trial, and if so, whether the prisoner, or that
other person, or both of them, did or did not obtain access to the
house by means of that nature.'
Collapse of jury. Dashed in a moment from their height of fancied
security, they lie helpless at the bottom of the abyss.
The summing-up was nearly over. Tressamer had begun to hope the judge
had forgotten him. But Sir Daniel had reserved his melodramatic
effects to the last, as all orators know they ought to do.
'And now a few words as to the unusual, I may say, I hope, the
extraordinary, though unhappily not quite unprecedented, line of
defence which has been adopted in this case. The prisoner's counsel
has not contented himself with merely defending the prisoner; he has
gone far beyond that, far beyond the necessities, so far as they
present themselves to my mind, of his position, and has distinctly and
deliberately brought an accusation against one who is not on trial
before you, and has, therefore, no means of rebutting the attack. For
such a course there is, in my opinion, not a shadow of excuse. I have
listened with great patience to the evidence in this case from the
beginning to the end, and I have not detected anywhere anything that
casts one particle of suspicion upon Mr. Lewis.
'He was attacked for having come so promptly to visit his relative on
his return. But his explanation was straightforward, and such as to
commend itself to everyone who heard him. I shall not trouble you
with any defence of Mr. Lewis, however'--(gratitude of the whole
court)--'but I must condemn in the gravest and strongest manner the
way in which Mr. Tressamer has abused his privilege as an advocate to
spring a charge of this deadly character upon one who is, so far as
we can see, a perfectly innocent man. If this sort of thing is to be
indulged in, the honour of the Bar--that noble profession to which it
is my glory to have belonged--will be dragged in the dust, and its
formidable immunities will have to be sharply and summarily curtailed.
It has been well said that no assassin is so terrible to the community
as the assassin of reputations, and in my opinion the man who is
capable of taking advantage of a technical immunity from punishment to
lie in wait for and destroy in cold blood the whole character and
career of another, reveals a blackness of disposition which fits him
for the commission of any crime, aye, though it were as heinous as
that of which he has accused his victim.'
It was a crushing rebuke. The crowded bar turned and looked at their
comrade as though they expected him to sink through the floor. But he
sat pale and rigid, tearing off the feather of a quill with his teeth,
but showing no other sign that he had heard the judge.
'It is the prisoner who must suffer most by such a line of defence.'
(Here Eleanor looked up suddenly, as if she had only just begun to pay
attention to what was going on.) 'Its natural effect on your minds
must be to induce you to ask yourselves not the real question before
you, namely, is Eleanor Owen guilty or not? But this other question:
which is guilty, Eleanor Owen or John Lewis? And to that you could, as
conscientious men, give only one answer.
'But that is what I want, if possible, to avoid. My principal reason
for making the remarks I have made about Mr. Tressamer's speech is
that I do not want you to confuse the issues, as he has confused them,
but to return your verdict freely and impartially, having regard
solely to the bearing of the evidence which has been given upon the
guilt or innocence of the prisoner.'
Here his lordship abruptly came to an end, just when the
long-suffering jury were expecting that he was at last going to give
them a hint as to his own leaning in the case.
It was now the part of the clerk of arraigns to rise and request
the jury to consider their verdict. But that functionary had taken
advantage of the charge to fall into a light and pleasant slumber,
from which it became necessary to rouse him. One of the Bar,
therefore, put out his hand and pulled the clerk of arraigns by the
sleeve. He started awake, and, hastily stumbling on to his feet,
looked wildly round for information.
The day before this incident would have provoked mirth. To-day it
caused nothing but impatient annoyance, except to a few junior
barristers, who thought it professional to show callous indifference
to what was going on. At last, however, the clerk of arraigns was made
to realise what stage had been reached, and he called the bailiff of
the court and gave the jury over to his charge, with the following
form of words:
'You shall take this jury to some convenient place, where you shall
lock them up without meat, fire, or light; you shall suffer no man to
speak to them, neither shall you speak to them yourself, except to ask
them if they have agreed upon their verdict; so help you God.'
The oath was taken, and the twelve men filed slowly out.