Trial and Error (26 page)

“And what did you do?”

“I forced myself to go up and look at her closely. She seemed to be dead. I lifted her forward a little. Than I realised that the bullet had gone . . . um . . . clean through her. It was actually lodged in the back of the chair. I . . . um . . . picked it up and put it in my pocket. Later I threw it into the river.”

“Why did you do that?”

“I'd read somewhere that bullets can prove the gun that fired them. I thought it best to protect myself by disposing of it. I realise now that it was an unfortunate action.”

“Did you do anything else before you left?”

“Yes. There were two tumblers on a table. I wiped one of them with my handkerchief but not the other.”

“Why did you do that?”

“I don't know,” confessed Mr Todhunter.

“Did you do anything else?”

“Yes. I removed a bracelet from Miss Norwood's wrist.”

“With what object?”

“I'm really not sure now,” said Mr Todhunter abjectly. “I was . . . um . . . very confused. I had had a great shock.”

“But you must have had some object in mind?”

“Yes, I think it was so that I could prove my . . . um . . . guilt, should the necessity ever arise.”

“Do you mean, in just such a situation as has in fact arisen?”

“Precisely.”

“Did you anticipate any such situation?”

“Good gracious, no. Such a thing never occurred to me. Dear me, no.”

“You never expected that anyone else would be accused of what you had done?”

“Certainly not. Otherwise . . .”

“Yes?”

“Otherwise,” said Mr Todhunter with dignity, “I should never have done it.”

“Thank you, Mr Todhunter. . . . My lord,” said Mr Jamieson impressively, “I have made the examination of the accused as brief as possible, owing to the very precarious state of his health. I have a certificate from his doctor here to say that he is not really in a condition to stand trial at all, if it were not that to have refused permission would probably have agitated him more than the trial itself. In fact the doctor says, very frankly, that he might die at any moment and that strain or agitation of any kind would probably be immediately fatal. I am able to say this in the presence of my client since he knows it perfectly well himself. I propose therefore to end my examination of him at this point. I think I have covered all the necessary ground; but with the greatest respect, if your lordship thinks there is any point which should be made clear to the jury that I may have omitted, I would ask you to put it to my client yourself.”

“I don't think there is, Mr Jamieson. Your client admits that it was he who killed the dead woman. The only issue I am trying is whether he did so in wilful murder or whether his action can be held to be manslaughter. I will put this simple issue to him, if you like. . . . Mr Todhunter, did you shoot Ethel May Binns deliberately and, as the law puts it, with malice aforethought?

“Er . . . no, my lord,” replied Mr Todhunter somewhat unhappily. “I did not that is . . . um . . . not with malice aforethought, I think.”

“In view of the remarks of my learned friend, my lord, I will not crossexamine the accused.”

There was some attempt at applause from the back of the court, which was instantly quelled.

A lean and cadaverous barrister rose.

“My lord, I have the honour to represent the commissioner of police. Mr Jamieson's remarks make my position a difficult one; nevertheless I understand that it is by the accused's express wish that I have been invited to cross-examine him. It is for your lordship to say whether such unorthodox procedure is inadmissible.”

“With so much that has been unorthodox already, Mr Bairns, a little more will hardly matter. But I must be satisfied that the accused is willing to answer your questions.” He turned his ancient head towards Mr Todhunter. “Do you wish to be given the opportunity to answer any questions that the commissioner of police may wish to put to you through his counsel?”

“In the interests of . . . um . . . justice, my lord,” Mr Todhunter replied, “I consider it imperative.”

“Very well then, Mr Bairns,” said the judge.

The lean Mr Bairns gave a hitch to his gown and then clasped it firmly with both hands, as if afraid that it might run away from him.

“You will appreciate my difficulty,” he addressed Mr Todhunter in a quiet, assured tone. “It may be that you will find some of my questions agitating. If so, perhaps I may rely on you to indicate as much at once, and no doubt my lord will give you a breathing space.”

Mr Todhunter gave a little bow from his chair in the witness box.

“I apologise for being . . . er . . . um . . . a nuisance to the Court,” he mumbled, feeling a little agitated already.

He fixed his eyes firmly on his opponent, nervously determined to be led into no traps. As he very well knew, the crux of the trial had arrived.

“I will make it as short as possible,” promised Mr Bairns and fixed his eyes on the ceiling as if seeking inspiration there. “Perhaps, if my lord allows me, I can manage to put a great number of separate questions into one collective whole. . . . I suggest to you, then, that you never shot this woman at all; that when you found her she was already dead; and that out of your friendship for the Farroway family you have taken the responsibility for this crime upon your own shoulders, knowing that it could affect you very little since you never expected to live long enough to suffer the penalty for it.”

Mr Todhunter made an effort to speak, his face turned a horrible pale green colour, his hand flew to his chest, and he slumped forward in his chair.

The whole court seemed to surge towards him.

CHAPTER XVII

Mr Todhunter did not die in the witness box.

Within a minute or two he had quite recovered and was testily waving away those anxious to assist him. Nevertheless the judge insisted upon adjourning the proceedings for half an hour to give him more time, and Mr Todhunter, protesting loudly, was carried out by two large policemen, while his own doctor, who had been retained to attend every day, danced nervously in the rear.

“It was touch and go with you that time,” he said candidly when he had Mr Todhunter to himself in a large bare room intended for goodness-knows-what legal purpose. “What made you give way like that?”

Stretched much against his will on a trestle table, with the doctor's overcoat under his head, Mr Todhunter grinned feebly.

“It was what I've been afraid of all the time. You see, I can prove that I meant to kill the woman, so far as one can prove that sort of thing; and of course I can prove that I was there that evening. But I don't see how I can possibly prove that I did kill her. Nor does old Prettiboy. Nor does Chitterwick. Nor does Fuller. Nor does anyone. It was my own damned idiocy in throwing away the bullet no doubt, but there it is. Don't you see, with that one question the chap's undermined the whole of the grand case Prettiboy built up? And I'm damned afraid those fools of a jury will go and give me the benefit of the doubt. Or even if they don't the police will take advantage of it to keep Palmer in gaol for a life sentence. It's damnable.”

“All right, all right, don't get excited. I can't think why you ever wanted to go and get mixed up with all this murdering business at all,” grumbled the doctor. “You used to be a decent fellow once, Todhunter. Now look at all the trouble you're giving me.”

“Don't think so much of your damned self,” snapped Mr Todhunter.

“Well, you're certainly giving plenty of other people trouble too,” agreed the doctor. He concealed a smile. Mr Todhunter was a more satisfactory patient than he knew. He reacted to a small kick in the mental pants as others react to stimulating drugs.

So at the end of half an hour Mr Todhunter was carried back into court (still protesting at the indignity), feeling as well as ever and relieved to know that the worst was over.

Mr Bairns gravely apologised for having caused Mr Todhunter distress.

Mr Todhunter courteously replied that it was nothing.

The judge asked whether Mr Todhunter felt capable of answering any further questions.

Mr Todhunter was understood to reply that he was not only capable but anxious to do so.

Mr Bairns gazed at the ceiling again.

“As a matter of fact, Mr Todhunter, you never answered my original question. I don't know whether you would like to do so now.”

“Certainly,” replied Mr Todhunter with asperity. “The answer to all the suggestions you made is that they are without foundation.”

“You reject them?”

“They are untrue.”

“Yet, if I may say so, they appeared to cause you distress?”

“They did.”

“Would you care to explain why?” asked Mr. Bairns, scrutinising the ceiling with such obvious interest that one would have said that he had detected a loose piece which might fall at any moment upon some important head.

“I should welcome the opportunity,” snapped Mr Todhunter, “if only to obviate any misunderstanding. It was because I can only assert that it was I who killed Miss Norwood; I cannot prove that it was actually my finger that pulled the trigger . . . um . . . inadvertently or not. And it distresses me to consider the possibility of this small loophole being used to save the faces of those who have blundered and to keep an innocent man in prison.”

A little gasp went up. This was boldness, to admit the flaw and try to turn it to advantage. Sir Ernest looked worried. Boldness often pays with a jury, but perhaps more often it does not. The judge looked doubtful, as if wondering whether Mr Todhunter were not being allowed too much latitude to make speeches. Only Mr Bairns remained interested in apparently nothing but the ceiling.

“Why did you not go to the police and confess your prime immediately after the shooting then?”

“I saw no reason to do so.”

“You preferred to wait until an innocent man had been accused?”

“It never occurred to me that anyone would be accused?”

“Yet you knew the police would make investigations?”

“Investigations, yes; not blunders.”

“It did not occur to you that persons with perhaps a more obvious motive than yours would be suspected?”

“I did not think about it. I tried to put the whole thing out of my mind.”

“You went for a voyage?”

“Yes.”

“With what purpose?”

“I wanted to visit Japan before I . . . um . . . died.”

“It was of more importance to you to visit Japan than stay and face the consequences of your act?”

“I anticipated no consequences.” Mr Todhunter would have liked to wipe his forehead but was afraid that such an action would be construed as a sign of another approaching collapse.

“You did not set out on that voyage in relief at having had the murder which you had been meditating performed for you, so that you could enjoy the pleasures of Japan with a clear conscience?”

“Certainly not.”

“Your conscience did not worry you?”

“Not in the least. My . . . um . . . action may have been unorthodox, but I'm still unable to feel that it was anything but beneficial.”

“I wish to allow you as much latitude as possible, Mr Todhunter, but I really must remind you that witnesses are supposed to confine themselves to answering the question asked and not make speeches.”

“I beg your pardon.”

“Not at all. . . . It was only when you heard of Palmer's arrest that you considered it time to make a clean breast of what you had done?”

“Yes.”

“Yet by that time you might well have been dead?”

“That is so. But I left a memorandum with my solicitor of what I had done, to be given to the police on my death.”

“Yes, that memorandum has been put in as an exhibit, I believe. Do you agree that it consisted of no more than a series of bare statements?”

“It was a series of statements of what I had done.”

“Statements unsupported by a jot of proof?”

“I considered it contained plenty of proof, and do so still.”

“What was the attitude of the police when they perused it?”

“I understand,” replied Mr Todhunter bitterly, “that they laughed at it.”

“In any case, they took no action on it?”

“No.”

“Can you suggest any other reason why they should have taken no action—a body of conscientious public officials—beyond the reason that they considered it a tissue of fabrications?”

“I'm sure they considered it that.”

“And yet you thought it good enough to satisfy them in the event of your being no longer alive and able to help them verify it?”

“I did.”

“Mr Todhunter, you have been represented to us, by your colleagues on the newspapers and others, as a man of intelligence above the average. I put it to you that, if you had really shot this woman, you would never have remained content with a vague ‘statement,' which you must have known was incapable of proof, but would have taken steps to make sure that your guilt was established beyond the possibility of any other person coming even under suspicion?”

“I did not regard my statement as vague nor incapable of proof, and I do not so regard it now.”

“Do you not agree that your actions after the murder are more consistent with innocence than with guilt, having in view the fact that, as you assert, you had acted only out of the most honourable motives and had nothing to lose by your guilt becoming known?”

“No, I don't agree to that.”

“You think that a man who had planned, mistakenly of course but sincerely, what we may call an honourable assassination, would then run away and leave others to bear the suspicion and possibly, in spite of this ‘statement,' the blame?”

“I object to the phrase ‘run away.' ”

“Let me put it this way. Do you find the actions of yours which followed the crime consistent with the honourable motive which, you tell us, caused you to plan it?”

“Perfectly. I may have been stupid, but. . .”

“I put it to you again—please don't distress yourself—that the defence which has been raised on your behalf in this court is the truth: that you only toyed with the idea of murder, possibly as an interest for your last weeks on earth sufficiently startling to take your mind off approaching death, but that in your inmost mind you never intended to perform it, knowing yourself incapable of doing so when it came to the point; and that when you heard that another person, belonging to a family for whom you had affection and regard, had committed the very murder which you had only academically planned, you saw that the evidence might be so twisted and distorted as to throw a certain amount of suspicion upon yourself, and so as an honourable and very gallant gentleman you accused yourself of a crime you had never committed?”

Those who had expected Mr Todhunter to collapse again before this suggestion were disappointed.

“That is not the case,” replied Mr Todhunter with surprising firmness.

His ordeal was over.

2

Mr Todhunter had occupied the box for the whole morning.

His doctor would not allow him to go out for lunch, and a covered tray was brought in for him into the bare room.

Sir Ernest came to him to congratulate him before going out for his own lunch.

“You came out of that well. Turned the tables on him properly. It was risky, but I think it'll pay. Otherwise your collapse might have put us in a bit of a fix.”

“What effect do you think his suggestions will have on the jury?” asked Mr Todhunter anxiously.

Sir Ernest looked grave. “Impossible to say. I believe they'd like to find you a gallant and honourable gent by their verdict, rather than a murderer.”

“But that would mean condemning Palmer?”

“Exactly.”

“Damn it, I'm
not
a gallant and honourable gent,” shouted Mr Todhunter passionately.

“Now, now,” soothed Sir Ernest and made a hurried exit.

3

The lean Mr Bairns was the first counsel to address the jury after the lunch recess. He did so with a great display of gratitude to the accused and the accused's advisers for their noble-mindedness in allowing him the opportunity. But that did not prevent him from going on to put the case as the police saw it with the utmost frankness and conviction.

His speech consisted chiefly of an amplification of the suggestions contained in his questions to Mr Todhunter, but he made one or two further points. Over the matter of Mr Todhunter's disposal of the bullet, for instance, Mr Bairns made great play.

“The accused tells us that he was responsible for this woman's death, whether willfully or not is of minor importance. Yet there is not a single action of his which is not consistent with his innocence.

“He tells us that he threw away the fatal bullet out of regard for his own safety. At first hearing, that may sound plausible. I submit that it will not stand examination for one moment.

“We have heard a great deal about psychology from both my learned friends, and no doubt one must take psychology more or less into account even in a court of law. Very well, what is the psychology of this act of throwing away the bullet? The accused says it is the crude instinct of self-preservation. But self-preservation from what? Compared with the ordinary murderer, the accused had comparatively nothing to fear from the utmost rigour of the law; or so, as he himself tells us, he thought at that time. Why then destroy this valuable, this one and only piece of utterly convincing evidence concerning the identity of the perpetrator?

“So that he should be free to visit Japan, says the accused. To visit Japan—and leave events to take their own course, innocent people to be suspected and an innocent man to be arrested! No. The only explanation consistent with the psychology which the accused had displayed up to that point is this. He threw away that bullet, not because it came from his own gun, but because it came from someone else's—someone whose identity he knew, someone whose action he fully approved, someone whom he was determined to protect at all costs. That, gentleman, in my submission, was why the accused threw away that damning bullet.”

Mr Todhunter cast an uneasy glance at Sir Ernest. The argument had upset him. But Sir Ernest was hunched up into a rotund lump of indifference, and his eye was not visible to be caught.

To Mr Todhunter's increasing discomfiture, Mr Bairns was pulling another cat down from the ceiling.

“I said that there was not a single action of the accused which cannot be interpreted as that of an innocent man, even the most trivial. Take for instance the matter of the exchange of revolvers, which Mr Todhunter intended to effect and which he apparently at one time thought had been effected. What was the object of this exchange? We know what had preceded it: careful questions to ascertain that there was a revolver in the flat at that moment, and that Palmer, the Farroway son-in-law, had brought it thither at a curiously early hour that same morning.

“What did he do then? He asked to see it. And what did he see? That Palmer's revolver was of identical pattern with his own, both old army revolvers of standard make. It would be outside my province perhaps to speculate upon what action the accused might have taken at this point, had the revolvers proved of a different pattern, or to suggest that he would have carried Palmer's away to dispose of it as he had disposed of the bullet. What he did do was to attempt to carry Palmer's away even then by substituting his own for it.

“That is not his own explanation. What the accused says is that his object was to leave his own revolver there. I suggest that it was nothing of the sort; that his true object was to carry Palmer's away.