Although no hint of the defence was supposed to transpire, the magic
words "No precedent" were whispered about in legal circles as the day
for Penreath's trial approached, and invested the case with more than
ordinary interest in professional eyes. Editors of London legal journals
endeavoured to extract something definite from Mr. Oakham when he
returned to London to brief counsel and prepare the defence, but the
lunches they lavished on him in pursuit of information might have been
spent with equal profit on the Sphinx.
The editors had to content themselves with sending shorthand writers to
Norwich to report the case fully for the benefit of their circle of
readers, whose appetite for a legal quibble was never satiated by
repetition.
On the other hand, the case aroused but languid interest in the breasts
of the ordinary public. The newspapers had not given the story of the
murder much prominence in their columns, because murders were only good
copy in war-time in the slack season between military offensives, and,
moreover, this particular case lacked the essentials of what modern
editors call, in American journalese jargon, "a good feature story." In
other words, it was not sufficiently sensational or immoral to appeal to
the palates of newspaper readers. It lacked the spectacular elements of
a filmed drama; there was no woman in the case or unwritten law.
It was true that the revelation of the identity of the accused man had
aroused a passing interest in the case, bringing it up from paragraph
value on the back page to a "two-heading item" on the "splash" page, but
that interest soon died away, for, after all, the son of a Berkshire
baronet was small beer in war's levelling days, when peers worked in
overalls in munition factories, and personages of even more exalted rank
sold pennyworths of ham in East-end communal kitchens.
Nevertheless, because of the perennial interest which attaches to all
murder trials, the Norwich Assizes Court was filled with spectators on
the dull drizzling November day when the case was heard, and the fact
that the accused was young and good-looking and of gentle birth probably
accounted for the sprinkling of well-dressed women amongst the audience.
The younger ones eyed him with sympathy as he was brought into the dock:
his good looks, his blue eyes, his air of breeding, his well-cut
clothes, appealed to their sensibilities, and if they had been given the
opportunity they would have acquitted him without the formality of a
trial as far "too nice a boy" to have committed murder.
To the array of legal talent assembled together by the golden wand of
Costs the figure of the accused man had no personal significance but the
actual facts at issue entered as little into their minds as into the
pitying hearts of the female spectators. The accused had no individual
existence so far as they were concerned: he was merely a pawn in the
great legal game, of which the lawyers were the players and the judge
the referee, and the side which won the pawn won the game. As this
particular game represented an attack on the sacred tradition of
Precedent, both sides had secured the strongest professional intellects
possible to contest the match, and the lesser legal fry of Norwich had
gathered together to witness the struggle, and pick up what points they
could.
The leader for the prosecution was Sir Herbert Templewood, K.C., M.P., a
political barrister, with a Society wife, a polished manner, and a
deadly gift of cross-examination. With him was Mr. Grover Braecroft, a
dour Scotch lawyer of fifty-five, who was currently believed to know the
law from A to Z, and really had an intimate acquaintance with those five
letters which made up the magic word Costs. Apart from this valuable
knowledge, he was a cunning and crafty lawyer, picked in the present
case to supply the brains to Sir Herbert Templewood's brilliance, and do
the jackal work which the lion disdained. The pair were supported by a
Crown Solicitor well versed in precedents--a little prim figure of a man
who sat with so many volumes of judicial decisions and reports of test
cases piled in front of him that only the upper portion of his grey head
was visible above the books.
The defence relied mainly upon Mr. Reginald Middleheath, the eminent
criminal counsel, who depended as much upon his portly imposing stage
presence to bluff juries into an acquittal as upon his legal
attainments, which were also considerable. Mr. Middleheath's cardinal
article of legal faith was that all juries were fools, and should be
treated as such, because if they once got the idea into their heads that
they knew something about the case they were trying they were bound to
convict in order to sustain their reputation for intelligence. One of
Mr. Middleheath's favourite tricks for disabusing a jury of the belief
that they possessed any common sense was, before addressing them, to
stare each juryman in the face for half a minute or so in turn with his
piercing penetrative eyes, accompanying the look with a pitying
contemptuous smile, the gaze and the smile implying that counsel for the
opposite side may have flattered them into believing that their
intelligences were fit to try such an intricate case, but they couldn't
deceive _him_.
Having robbed the jury of their self-esteem by this means, Mr.
Middleheath would proceed to put them on good terms with themselves
again by insinuating in persuasive tones that the case was one
calculated to perplex the most astute legal brain. He would frankly
confess that it had perplexed him at first, but as he had mastered its
intricacies the jury were welcome to his laboriously acquired knowledge
in order to help them in arriving at a right decision. Mr. Middleheath's
junior was Mr. Garden Greyson, a thin ascetic looking lawyer whose
knowledge of medical jurisprudence had brought him his brief in the
case. Mr. Oakham sat beside Mr. Greyson with various big books in front
of him.
The judge was Mr. Justice Redington, whose presence on the bench was
always considered a strengthening factor in the Crown case. Judges
differ as much as ordinary human beings, and are as human in their
peculiarities as the juries they direct and the prisoners they try.
There are good-tempered and bad-tempered judges, harsh and tender
judges, learned and foolish judges, there are even judges with an eye to
self-advertisement, and a few wise ones. Mr. Justice Redington belonged
to that class of judges who, while endeavouring to hold the balance
fairly between the Crown and the defence, see to it that the accused
does not get overweight from the scales of justice. Such judges take
advantage of their judicial office by cross-examining witnesses for the
defence after the Crown Prosecutor has finished with them, in the effort
to bring to light some damaging fact or contradiction which the previous
examination has failed to elicit. In other respects, Mr. Justice
Redington was a very fair judge, and he worked as industriously as any
newspaper reporter, taking extensive notes of all his cases with a gold
fountain pen, which he filled himself from one of the court inkstands
whenever it ran dry. In appearance he was a florid and pleasant looking
man, and his hobby off the bench was farming his own land and breeding
prize cattle.
There were the usual preliminaries, equivalent to the clearing of the
course or the placing of the pieces, which bored the regular habitués of
the court but whetted the appetites of the more unsophisticated
spectators. First there was the lengthy process of empanelling a jury,
with the inevitable accompaniment of challenges and objections, until
the most unintelligent looking dozen of the panel finally found
themselves in the jury box. Then the Clerk of Arraigns gabbled over the
charges: wilful murder of Roger Glenthorpe on 26th October, 1916, and
feloniously stealing from the said Roger Glenthorpe the sum of £300 on
the same date. To these charges the accused man pleaded "Not guilty" in
a low voice. The jury were directed on the first indictment only, and
Sir Herbert Templewood got up to address the jury.
Sir Herbert knew very little about the case, but his junior was well
informed; and what Mr. Braecroft didn't know he got from the Crown
Solicitor, who sat behind the barristers' table, ready to lean forward
at the slightest indication and supply any points which were required.
Under this system of spoon-feeding Sir Herbert ambled comfortably along,
reserving his showy paces for the cross-examination of witnesses for the
defence.
Sir Herbert commenced by describing the case as a straightforward one
which would offer no difficulty to an intelligent jury. It was true that
it rested on circumstantial evidence, but that evidence was of the
strongest nature, and pointed so clearly in the one direction, that the
jury could come to no other conclusion than that the prisoner at the bar
had committed the murder with which he stood charged.
With this preamble, the Crown Prosecutor proceeded to put together the
chain of circumstantial evidence against the accused with the deliberate
logic of the legal brain, piecing together incidents, interpreting
clues, probing motives, and fashioning together the whole tremendous
apparatus of circumstantial evidence with the intent air of a man
building an unbreakable cage for a wild beast. As Colwyn had
anticipated, the incident at the Durrington hotel had been dropped from
the Crown case. That part of the presentment was confined to the
statement that Penreath had registered at the hotel under a wrong name,
and had left without paying his bill. The first fact suggested that the
accused had something to hide, the second established a motive for the
subsequent murder.
Sir Herbert Templewood concluded his address in less than an hour, and
proceeded to call evidence for the prosecution. There were nine
witnesses: that strangely assorted pair, the innkeeper and Charles, the
deaf waiter, Ann, the servant, the two men who had recovered Mr.
Glenthorpe's body from the pit, the Heathfield doctor, who testified as
to the cause of death, Superintendent Galloway, who gave the court the
result of the joint investigations of the chief constable and himself at
the inn, Police-Constable Queensmead, who described the arrest and
Inspector Fredericks, of Norwich, who was in charge of the Norwich
station when the accused was taken there from Flegne. In order to save
another witness being called, Counsel for the defence admitted that
accused had registered at the Grand Hotel, Durrington, under a wrong
name, and left without paying his bill.
Mr. Middleheath cross-examined none of the witnesses for the prosecution
except the last one, and his forensic restraint was placed on record by
the depositions clerk in the exact words of the unvarying formula
between bench and bar. "Do you ask anything, Mr. Middleheath?" Mr.
Justice Redington would ask, with punctilious politeness, when the Crown
Prosecutor sat down after examining a witness. To which Mr. Middleheath
would reply, in tones of equal courtesy: "I ask nothing, my lord."
Counsel's cross-examination of Inspector Fredericks consisted of two
questions, intended to throw light on the accused's state of mind after
his arrest. Inspector Fredericks declared that he was, in his opinion,
quite calm and rational.
Mr. Middleheath's opening address to the jury for the defence was brief,
and, to sharp legal ears, vague and unconvincing. Although he pointed
out that the evidence was purely circumstantial, and that in the absence
of direct testimony the accused was entitled to the benefit of any
reasonable doubt, he did not attempt to controvert the statements of the
Crown witnesses, or suggest that the Crown had not established its case.
His address, combined with the fact that he had not cross-examined any
of the Crown witnesses, suggested to the listening lawyers that he had
either a very strong defence or none at all. The point was left in
suspense for the time being by Mr. Justice Redington suggesting that, in
view of the lateness of the hour, Counsel should defer calling evidence
for the defence until the following day. As a judicial suggestion is a
command, the court was adjourned accordingly, the judge first warning
the jury not to try to come to any conclusion, or form an opinion as to
what their verdict should be, until they had heard the evidence for the
prisoner.
When the case was continued the next day, the first witness called for
the defence was Dr. Robert Greydon, an elderly country practitioner with
the precise professional manner of a past medical generation, who stated
that he practised at Twelvetrees, Berkshire, and was the family doctor
of the Penreath family. In reply to Mr. Middleheath he stated that he
had frequently attended the late Lady Penreath, the mother of the
accused, for fits or seizures from which she suffered periodically, and
that the London specialist who had been called into consultation on one
occasion had agreed with him that the seizures were epileptic.
"I want to give every latitude to the defence," said Sir Herbert
Templewood, rising in dignified protest, "but I am afraid I cannot
permit this conversation to go in. My learned friend must call the
London specialist if he wants to get it in."
"I will waive the point as my learned friend objects," said Mr.
Middleheath, satisfied that he had "got it in" the jury's ears, "and
content myself with asking Dr. Greydon whether, from his own knowledge,
Lady Penreath suffered from epilepsy."
"Undoubtedly," replied the witness.
"One moment," said the judge, looking up from his notes. "Where is this
evidence tending, Mr. Middleheath?"
"My lord," replied Mr. Middleheath solemnly, "I wish the court to know
all the facts on which we rely."
The judge bowed his head and waved his gold fountain-pen as an
indication that the examination might proceed. The witness said that
Lady Penreath was undoubtedly an epileptic, and suffered from attacks
extending over twenty years, commencing when her only son was five years
old, and continuing till her death ten years ago. For some years the
attacks were slight, without convulsions, but ultimately the grand mal
became well developed, and several attacks in rapid succession
ultimately caused her death. In the witness's opinion epilepsy was an
hereditary disease, frequently transmitted to the offspring, if either
or both parents suffered from it.
"Have you ever seen any signs of epilepsy in Lady Penreath's son--the
prisoner at the bar?" asked Sir Herbert, who began to divine the
direction of the defence.
"Never," replied the witness.
"Was he under your care in his infancy and boyhood? I mean were you
called in to attend to his youthful ailments?"
"Yes, until he went to school."
"And was he a normal and healthy boy?"
"Quite."
"Did you see him when he returned home recently?" asked Mr. Middleheath,
rising to re-examine.
"Yes."
"You are aware he was discharged from the Army suffering from
shell-shock?"
"Yes."
"And did you notice a marked change in him?"
"Very marked indeed. He struck me as odd and forgetful at times, and
sometimes he seemed momentarily to lose touch with his surroundings. He
used to be very bright and good-tempered, but he returned from the war
irritable and moody, and very silent, disliking, above all things, to be
questioned about his experiences at the front. He used to be the very
soul of courtesy, but when he returned from the front he refused to
attend a 'welcome home' at the village church and hear the vicar read a
congratulatory address."
"I hope you are not going to advance the latter incident as a proof of
_non compos mentis_, Mr. Middleheath," said the judge facetiously.
In the ripples of mirth which this judicial sally aroused, the little
doctor was permitted to leave the box, and depart for his native
obscurity of Twelvetrees. He had served his purpose, so far as Mr.
Middleheath was concerned, and Sir Herbert Templewood was too good a
sportsman to waste skilful flies on such a small fish, which would do no
honour to his bag if hooked.
Sir Herbert Templewood and every lawyer in court were by now aware that
the defence were unable to meet the Crown case, but were going to fight
for a verdict of insanity. The legal fraternity realised the
difficulties of that defence in a case of murder. It would be necessary
not only to convince the jury that the accused did not know the
difference between right and wrong, but to convince the judge, in the
finer legal interpretation of criminal insanity, that the accused did
not know the nature of the act he was charged with committing, in the
sense that he was unable to distinguish whether it was right or wrong at
the moment of committing it. The law, which assumes that a man is sane
and responsible for his acts, throws upon the defence the onus of
proving otherwise, and proving it up to the hilt, before it permits an
accused person to escape the responsibility of his acts. Such a defence
usually resolves itself into a battle between medical experts and the
counsel engaged, the Crown endeavouring to upset the medical evidence
for the defence with medical evidence in rebuttal.
The lawyers in court settled back with a new enjoyment at the prospect
of the legal and medical hair-splitting and quibbling which invariably
accompanies an encounter of this kind, and Crown Counsel and solicitors
displayed sudden activity. Sir Herbert Templewood and Mr. Braecroft held
a whispered consultation, and then Mr. Braecroft passed a note to the
Crown Solicitor, who hurried from the court and presently returned
carrying a formidable pile of dusty volumes, which he placed in front of
junior counsel. The most uninterested person in court seemed the man in
the dock, who sat looking into a vacancy with a bored expression on his
handsome face, as if he were indifferent to the fight on which his
existence depended.
The next witness was Miss Constance Willoughby, who gave her testimony
in low clear tones, and with perfect self-possession. It was observed by
the feminine element in court that she did not look at her lover in the
dock, but kept her eyes steadily fixed on Mr. Middleheath. Her story was
a straightforward and simple one. She had become engaged to Mr. Penreath
shortly before the war, and had seen him several times since he was
invalided out of the Army. The last occasion was a month ago, when he
called at her aunt's house at Lancaster Gate. She had noticed a great
change in him since his return from the front. He was moody and
depressed. She did not question him about his illness, as she thought he
was out of spirits because he had been invalided out of the Army, and
did not want to talk about it. He told her he intended to go away for a
change until he got right again--he had not made up his mind where, but
he thought somewhere on the East Coast, where it was cool and bracing,
would suit him best--and he would write to her as soon as he got
settled anywhere. She did not see him again, and did not hear from him
or know anything of his movements till she read his description in a
London paper as that of a man wanted by the Norfolk police for murder.
Her aunt, who showed her the paper, communicated with the Penreaths'
solicitor, Mr. Oakham. The following day she and her aunt were taken to
Heathfield and identified the accused.
"Your aunt took action to allay your anxiety, I understand?" said Mr.
Heathfield, whose watchful eye had noted the unfavourable effect of this
statement on the jury.
The witness bowed.
"Yes," she replied. "I was terribly anxious, as I had not heard from Mr.
Penreath since he went away. Anything was better than the suspense."
"You say accused was moody and depressed when you saw him?" asked Sir
Herbert Templewood.
"Yes."
"May I take it that there was nothing terrifying in his
behaviour--nothing to indicate that he was not in his right mind?"
"No," replied the witness slowly. "He did not frighten me, but I was
concerned about him. He certainly looked ill, and I thought he seemed a
little strange."
"As though he had something on his mind?" suggested Sir Herbert.
"Yes," assented the witness.
"Were you aware that the accused, when he went to see you at your aunt's
home before he departed for Norfolk, was very short of money?"
"I was not. If I had known----"
"You would have helped him--is that what you were going to say?" asked
Mr. Middleheath, as Sir Herbert resumed his seat without pursuing the
point.
"My aunt would have helped Mr. Penreath if she had known he was in
monetary difficulties."
"Thank you." Mr. Middleheath sat down, pulling his gown over his
shoulders.
The witness was leaving the stand when the sharp authoritative voice of
the judge stopped her.
"Wait a minute, please, I want to get this a little clearer. You said
you were aware that the accused was discharged from the Army suffering
from shell-shock. Did he tell you so himself?"
"No, my lord. I was informed so."
"Really, Mr. Middleheath----"
The judge's glance at Counsel for the Defence was so judicial that it
brought Mr. Middleheath hurriedly to his feet again.
"My lord," he explained, "I intend to prove in due course that the
prisoner was invalided out of the Army suffering from shell-shock."
"Very well." The judge motioned to the witness that she was at liberty
to leave the box.
The appearance of Sir Henry Durwood in the box as the next witness
indicated to Crown Counsel that the principal card for the defence was
about to be played. Lawyers conduct defences as some people play
bridge--they keep the biggest trump to the last. Sir Henry represented
the highest trump in Mr. Middleheath's hand, and if he could not score
with him the game was lost.
Sir Henry seemed not unconscious of his importance to the case as he
stepped into the stand and bowed to the judge with bland professional
equality. His evidence-in-chief was short, but to the point, and
amounted to a recapitulation of the statement he had made to Colwyn in
Penreath's bedroom on the morning of the episode in the breakfast-room
of the Grand Hotel, Durrington. Sir Henry related the events of that
morning for the benefit of the jury, and in sonorous tones expressed his
professional opinion that the accused's strange behaviour on that
occasion was the result of an attack of epilepsy--petit mal, combined
with _furor epilepticus_.
The witness defined epilepsy as a disease of the nervous system, marked
by attacks of unconsciousness, with or without convulsions. The loss of
consciousness with severe convulsive seizures was known as grand mal,
the transient loss of consciousness without convulsive seizures was
called petit mal. Attacks of petit mal might come on at any time, and
were usually accompanied by a feeling of faintness and vertigo. The
general symptoms were sudden jerkings of the limbs, sudden tremors,
giddiness and unconsciousness. The eyes became fixed, the face slightly
pale, sometimes very red, and there was frequently some almost automatic
action. In grand mal there was always warning of an attack, in petit mal
there was no warning as a rule, but sometimes there was premonitory
giddiness and restlessness. _Furor epilepticus_ was a medical term
applied to the violence displayed during attacks of petit mal, a
violence which was much greater than extreme anger, and under its
influence the subject was capable of committing the most violent
outrages, even murder, without being conscious of the act.
"There is no doubt in your mind that the accused man had an attack of
petit mal in the breakfast-room of the Durrington hotel the morning
before the murder?" asked Mr. Middleheath.
"None whatever. All the symptoms pointed to it. He was sitting at the
breakfast table when he suddenly ceased eating, and his eyes grew
fixed. The knife which he held in his hand was dropped, but as the
attack increased he picked it up again and thrust it into the table in
front of him--a purely automatic action, in my opinion. When he sprang
up from the table a little while afterwards he was under the influence
of the epileptic fury, and would have made a violent attack on the
people sitting at the next table if I had not seized him.
Unconsciousness then supervened, and, with the aid of another of the
hotel guests, I carried him to his room. It was there I noticed foam on
his lips. When he returned to consciousness he had no recollection of
what had occurred, which is consistent with an epileptic seizure. I saw
that his condition was dangerous, and urged him to send for his friends,
but he refused to do so."
"It would have been better if he had followed your advice. You say it is
consistent with epilepsy for him to have no recollection of what
occurred during this seizure in the hotel breakfast room. What would a
man's condition of mind be if, during an attack of petit mal, he
committed an act of violence, say murder, for example?"
"The mind is generally a complete blank. Sometimes there is a confused
sense of something, but the patient has no recollection of what has
occurred, in my experience."
"In this case the prisoner is charged with murder. Could he have
committed this offence during another attack of _furor epilepticus_ and
recollect nothing about it afterwards? Is that consistent?"
"Yes, quite consistent," replied the witness.
"Is epilepsy an hereditary disease?"
"Yes."
"And if both parents, or one of them, suffered from epilepsy, would
there be a great risk of the children suffering from it?"
"Every risk in the case of both persons being affected; some probability
in the case of one."
"What do you think would be the effect of shell-shock on a person born
of one epileptic parent?"
"It would probably aggravate a tendency to epilepsy, by lowering the
general health."
"Thank you, Sir Henry."
Mr. Middleheath resumed his seat, and Sir Herbert Templewood got up to
cross-examine.