The Queen Against Owen

CHAPTER IX.

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.’