Burke and Hare (13 page)

The Lord Advocate replied that his intention in including McDougal in the same indictment as Burke was, so far from doing anything to prejudice a prisoner on trial, exactly the opposite. It would be in her interests to be so placed, rather than have all the evidence in the case against Burke repeated in the case against her afterwards. But he did not insist on it. If she and her counsel wanted a separate trial, so be it.

As to the charges against Burke, Sir William believed strongly that the alleged murders were so close in time, in place and in motive, that they should be tried together. ‘I am told by my learned friend, that this is the first case that has occurred where three murders have appeared in one libel, and it is with pain that I acknowledge the truth of the statement. It is with sorrow I admit that there is not only no precedent of such a thing in the annals of this Court, but in the annals of any civilized country whatever.’
⁴
Nevertheless, the crimes were ‘all of one name and species, all of one class and description, and stamp a character upon the pannel, which a jury and the Court are bound and entitled to look to’, and he, the Lord Advocate, ‘ought to be allowed to proceed to trial against Burke, on the three different charges for murder contained in this indictment’.
⁵

The Dean of Faculty then rose to press the arguments put by Mr Robertson. He conceded that there was nothing illegal in the framing of the indictment, but insisted that it was a matter for the Court’s discretion. The three charges were separate charges of the murder of ‘different persons, totally unconnected with one another, living in different places, and in different circumstances; and the last of these acts is said to have been committed in conjunction with a third person, who is not stated to have any connexion with the other acts’. If the prosecutor were able to prove
one
of these murders, it would infallibly lead to the death of the defendant, so where was the necessity for charging him at the same time with other murders? ‘I may have an alibi as to one – in another there may be no murder committed – in a third it may have been committed by a different person.’ But the jury would be perplexed by the mixture of the whole together and the prisoner ‘may be convicted upon the mere impression of guilt from the multiplication of charges, without any sufficient evidence in any one of them’.
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These legal arguments about the framing of the indictment were protracted, with much quoting of precedents going back as far as 1696, and it was late in the morning when the Lord Justice-Clerk asked his fellow-judges to give their opinions on them. Lord Pitmilly spoke first. He thought it right that McDougal’s case should be separated from the two acts she was not charged with, and considered that, since Burke’s counsel had requested it, Burke should be tried on one charge first, and the others afterwards if necessary. Lord Meadowbank agreed, and Lord Mackenzie announced, at considerable length, that he had nothing to add to what had been said.

The Lord Justice-Clerk’s decision was that the discretion of the Court could be exercised in allowing Burke to be tried separately on each charge, but the public prosecutor could choose which charge he wished to proceed with first. The Lord Advocate proposed to proceed with the third case, that of Mrs Docherty, and since that was the murder with which McDougal was also charged as ‘art and part guilty’ along with Burke, she could not be prejudiced by reference to the other murders with which she was not charged, and so he would try them both together.

The prisoners were asked if they were guilty or not guilty of the third charge in the indictment, and both pleaded not guilty. A jury of fifteen men was then chosen by ballot and sworn in, consisting of local merchants, tradesmen and artisans. Among those summoned for jury service that day was a local portrait painter, George Andrew Lutenor, but his name did not come out in the ballot. If he had been chosen, one wonders if his close attention to the evidence in the case might not have been superseded by his fascination with the physiognomy of those taking part in the drama. Lutenor did make drawings of some of the participants, including Maggie Laird with her child in her arms. The chosen members elected John McFie, a merchant of Leith, as their chancellor, or chairman. By the time the trial actually commenced, it was already midday on Christmas Eve.

Sir William Rae began calling his witnesses, and most of them were brief and to the point. James Braidwood, a builder and fireman, had made the house-plans produced in evidence. Mary ‘Stewart or Stuart’ said that ‘Mrs Campbell’ had been in good health when she left her lodging-house on the morning of 31 October, and Charles McLauchlan, who also lodged there, confirmed this and said that the woman went by the name of Marjory McGonegal, but was also known as Mrs Campbell or Duffie. He was asked in cross-examination, ‘Did she ever call herself Docherty?’

‘Not that I know of,’ he replied. Both he and Mrs Stewart, however, had identified the body as that of the woman who had lodged with them. William Noble, Rymer’s shop-boy, said that he had seen Burke talking to the woman in the shop, and that Burke had later come in for a tea-chest, which was not yet paid for.

Hugh Alston was then questioned by Archibald Alison, one of the Crown prosecution team:

‘Do you live in the same land in which William Burke’s house is situated?’

‘Yes, sir, I live in the first flat upstairs, and Burke lives in the sunk flat below the shop.’

‘The shop is between your house and his?’

‘Yes, sir, exactly.’

‘Now, sir, do you recollect on the night of the 31st October, when you were going home, hearing any noise there?’

‘Yes, sir, I did.’

‘What hour was it?’

‘I could not speak to the exact minute, but it was about half-past eleven.’

‘Were you going along the passage at that time which leads up to your house?’

‘Yes, sir, I was.’

‘You were going along the passage that leads to your house, on the line of the street?’

‘Yes, sir.’

‘What did you hear, sir?’

‘I heard, as it were, two men quarrelling and fighting, making a great noise; there was a woman’s voice that attracted my particular attention, the cry of a woman, of murder.’

‘What did you do upon that, sir?’

‘My wife, who was with me, went up to my house, and I went down and stopped a little upon the stair to see that there was no person upon the stair till I ventured down to the bottom.’

‘You know Connoway’s door?’

‘Yes, I believe that is the door next to the passage.’

‘Did you go as far as it?’

‘Near to it, within a yard or so of it.’

‘Now, tell us as distinctly as you can, the different sounds you heard when in that situation.’

‘I heard these two men making a great noise, as if wrangling or quarrelling. I heard no strokes or blows – I heard a woman crying murder, but not in that way as I could consider her in imminent danger herself.’

‘Well, sir, what more did you hear?’

‘That continued probably for half a minute, or a minute; she still continued to cry murder – it was a very strong voice for a female voice; standing there a minute or two, there was something gave a cry, as if proceeding from a person, or animal, that had been strangled.’

‘That of a person, or animal, that had been strangled?’

‘Yes, I could hardly distinguish it from that of a human being.’

‘Well, sir, at this time did you hear any noise on the floor?’

‘I heard these two men’s voices, but I could not say that I heard anything else.’

‘No blows?’

‘No, just a great deal of noise they were making by speaking.’

‘Very loud?’

‘Yes.’

‘Now, after this remarkable sound had ceased, did you hear the female voice still crying murder?’

‘Yes; she struck upon something, I do not know what she struck with, but slapped the door as if crying for the police, and cried “murder here”.’

‘Well, sir, did you remain any length of time there?’

‘After this I went for the police; I was often afraid of fire, and I went for a policeman, but could not find one.’

‘Did you return to the stair then?’

‘Yes. I did not go far down; I went down a little way.’

‘Did you hear anything when you returned the second time?’

‘I heard the men speaking, and the woman ceased to cry murder; I thought everything was over. They seemed to have removed to a greater distance, and the noise had ceased.’

‘Now, in the course of the time you were listening, did you hear any wrangling or struggling at that time?’

‘I might hear feet moving on the floor, but I can’t say more.’

‘How far might you be from Burke’s door when you heard the sound?’

‘It could not exceed three yards or so; it might be about three yards, but I do not think it exceeded that.’

‘Do you mean the door of the house, or the passage that leads to the house?’

‘The door of the passage that leads to the house.’

‘Will you be so good as tell us how far Burke’s door is from that passage?’

‘I never measured it, but I think it would be about fifteen feet. I was three yards from the outer door.’

‘There is a turn in the passage?’

‘Yes, sir, there is.’

‘Was the outer door shut?’

‘I was not so far forward as to see that; it appeared to me that it was on that door the woman struck. It was on the door of the passage, not the door of the room.’

‘You heard that a body was found?’

‘Yes, in the evening of Saturday, about seven or eight o’clock.’

‘Did that circumstance of a body being found fix your recollection of what you have mentioned?’

‘Yes, I recollected immediately.’

Mr Alston was cross-examined by the Dean of Faculty, who asked where Alston had gone when he went for the police.

‘To the mouth of the passage above Burke’s passage. I saw one at the top of the street, but he was without my cry; and when I returned, I did not consider it necessary to get one, as the sound had ceased a good deal.’

‘Did you go down to the Grassmarket?’

‘No.’

‘The woman that made the noise on the door, struck on the door, and called murder; did you believe the voice you heard came from her?’

‘It was the same identical voice that called murder, that
took
me down the stairs.’

‘That was not the voice of the woman, that struck on the door, if she cried at the same time, and said there was murder?’

‘Yes, I think she said, “For God sake get the police, there is murder here”.’

The Lord Justice-Clerk interrupted to ask Alston if they were to understand that ‘the voice that was uttering these cries, of a person or animal strangling, was different from that of the woman calling murder’.

‘Yes,’ Alston answered, ‘it was quite different.’

The Dean of Faculty continued:

‘I think I have it down quite distinct; it was on the door, not the outside door, that the woman was striking; how do you know that, when you was three or four yards from that door?’

‘I tried the experiment since on the door of the room; a person was shut in, and he struck the side of the room door, and I said that was not the sound, but the outer door.’

The foreman of the jury asked Mr Alston if the cries of murder proceeding from the passage came from Burke’s house.

‘I have no doubt of that, sir,’ was the reply.

Mrs Connoway and Mrs Law both testified at greater length on the goings-on during Hallowe’en night, and John Broggan and Elizabeth Paterson added their recollections. David Paterson described events connected with the corpse, from Burke knocking on his door at midnight to the police opening the tea-chest in Knox’s cellar. He was cross-examined by the Dean of Faculty:

‘Paterson, you have seen the man Hare before that came into Court, and you looked at?’

‘Yes, my Lord.’

‘You know that Dr Knox had dealings with him for dead bodies?’

‘Yes, my Lord.’

‘Before that time?’

‘Yes, my Lord.’

‘You know whether he had dealings before with Burke about subjects?’

‘Yes, my Lord.’

‘Did they seem to act conjunctly?’

‘Yes, my Lord.’

‘Who appeared to be the principal party?’

‘I have seen both in their turn.’

‘You have seen both assume the principal part?’

‘Yes, my Lord.’

Moncrieff wanted to know if Paterson had shared out equally the £5 paid on account so as to prevent the two men quarrelling over the money, and Paterson confirmed this.

‘Have you known quarrels between Burke and Hare, respecting such booty?’

‘I have seen them drunk on the streets, and have heard disputes and quarrels between them.’

‘More than once?’

‘Yes, my Lord.’

‘Often?’

‘Yes, my Lord.’

Mrs Gray was called next, and after explaining all the details of finding the body under the straw, she was asked if there was much straw on it, and how the body was lying.

‘On the right side, sir,’ she answered, ‘with her face to the wall.’

‘Did you leave it there?’

‘Yes, just threw the straw upon it. My husband went away before me; he met Mrs Burke on the stair; I went out immediately after.’

‘Did you see him meet her?’

‘Yes.’

‘What passed at that time?’

‘He asked about the body, and she told him to hold his tongue, and she would give him a few shillings; and if he would be quiet, it might be worth £10 a week to him.’

‘Did you say anything about the body?’

‘I turned back and went into the house.’

‘What passed then?’

‘I spoke to her about the body, and she bade me hold my tongue.’

‘Did you say what body it was?’

‘I told her it was the woman’s that was well last night, singing and dancing on the floor.’

‘Did anything more pass?’

‘She bade me hold my tongue – she did not know that I heard her speak to my husband – and she said she would give me five shillings or six shillings if I would hold my tongue.’

‘What more?’

‘She repeated the words over again; and if I and my husband would be quiet, it would be worth £10 a week to us; and I said, God forbid that I would be worth money with dead people.’