Trial and Error (28 page)

But Mr Bairns had not finished yet.

He shuffled his papers and looked at the usher.

“Call Miss Julia Fairey.”

And who on earth, wondered Mr Todhunter, is Miss Julia Fairey?

He was to be enlightened without delay.

A curious, hunched old person in black crept into the witness box rather like a large snail and took the oath in a mouselike voice.

Her evidence, as reported by the press agencies, ran as follows:

“I live at 86 Hamilton Avenue, Richmond. I am the cook there. The house is next door to that occupied by the late Miss Norwood. I have often seen Miss Norwood walking in her garden. It is possible to see portions of the garden from our windows. I am acquainted with the general layout of the late Miss Norwood's garden. About three months ago I was returning to 86 Hamilton Avenue from the theatre. It was late at night. I think it was just about midnight. I can fix the date from the fact that it was the only occasion on which I have been to a theatre in the West End of London for over a year. The date was the third of December. Just as I was entering the house I heard a loud noise from the direction of Miss Norwood's garden. It appeared to come from near the summerhouse. I was alarmed, remembering that Miss Norwood had been shot there last autumn, and hurried into the house. The noise sounded like a shot. It was a noise like an explosion. I mentioned the incident to my fellow servants the next day. We all looked at the papers for several days. to see if anyone else had been shot like Miss Norwood.”

Sir Ernest rose, a little puzzled but undismayed.

“This mysterious noise—you say it sounded like a shot?”

“Just like a shot, sir.”

“How many shots have you heard fired in your life, Miss Fairey?”

“I've never heard a shot fired, sir.”

“Then how do you know this noise sounded like one?”

This appeared a novel point of view to the witness. “Well, it did, sir.”

“Would it not be fairer to say, since you must have heard many fireworks discharged, that it sounded like a firework?”

“Well, it did sound like a firework, too, a loud one.”

“Or a motorcar backfiring?”

“Yes, that sort of noise, it was.”

“Or a motor launch on the river? Someone trying to start the engine, you know? You must have heard that kind of noise many times? Was it like that?”

“Yes, just like that, sir.”

“Let me see,” said Sir Ernest engagingly, “this house where you live must be two beyond mine, I take it, so we have about the same sort of view. Now, from where you stood would the summerhouse in Miss Norwood's garden have been between you and the river?”

“Yes, it would.”

“So that this noise, which struck you as coming from the summerhouse, might really have come from the river beyond it?”

“Yes, I suppose it could, if you put it like that sir.”

“But of course a shot in the summerhouse made a better story to tell the others the next morning?”

“I'm afraid I don't quite understand, sir.”

“Never mind. How old are you, Miss Fairey?”

“I'm fifty-six, sir.”

“Are you really? Dear me. Faculties getting a bit impaired or not?” asked Sir Ernest, dropping his voice a little.

“I beg your pardon, sir?”

Sir Ernest maintained the same slightly lower tone, which was nevertheless perfectly audible to Mr Todhunter.

“I asked whether your faculties were getting impaired or not?”

“I'm sorry, sir, I couldn't quite. . .”

Sir Ernest dropped another semitone. “I mean, are you getting at all hard of heading?”

“I can't quite make out the question, sir.” Miss Fairey innocently cupped a hand to her ear.

“I asked,” said Sir Ernest very loudly, “whether you were getting bit hard of hearing?”

“No, that I'm not,” retorted Miss Fairey with indignation, “when folks speak up properly.” She looked round in astonishment at the laughter which broke from the whole Court.

Amid the laughter Sir Ernest sat down.

Mr Bairns took counsel with the ceiling.

“In any case, Miss Fairey, you have no doubt of what you heard on the night of the third of December. It was a noise that sounded like a shot, and it seemed to come from the direction of the summerhouse in the late Miss Norwood's garden?”

“Yes sir. That's what I said, sir,” retorted Miss Fairey, still a little ruffled, and made a snail-like exit.

“Call Police Constable Silverside,” requested Mr Bairns.

Police Constable Silverside gave his evidence like a book.

“On the night of December the third I was on duty from midnight to 4 a.m. My beat includes Lower Putney Road. I know the accused's house. I have called there several times on different matters. On those occasions I have often interviewed the accused. Also he has often bidden me good morning or good afternoon as the case might be. I know his house of a nighttime. It is one of the first houses on the beat to put its lights out. The lights are usually out before midnight. On the night of the third of December the lights were on till after 1 a.m. It was a light on the first floor. It was not on when I went first on my beat. I noticed it on when I passed the house about 12.30 a.m. It was on for about half an hour. It made an impression on me because I knew the gentleman wasn't very well. I thought he might have been taken ill. I approached the front door to see if I might be needed to render assistance. The door was locked. I did not ring. While I was standing there, the light went out. I have no doubt about the date, because I made me note in my book. I made the note in case the gentleman had been taken ill suddenly and it was needed later to establish the time.”

Sir Ernest was beginning to get the drift of this mysterious evidence, just there was little he could do so far as the present witness was concerned.

“Is it your habit to stand by in order to act as sick nurse to the inhabitants on your beat?” he began with heavy sarcasm.

“No.”

“Then why did you do so in this case?”

“I happened to know the nature of the gentleman's complaint and thought it might be necessary to summon assistance in a hurry.”

“Did it not occur to you that the telephone might be quicker?”

“I knew there were only women in the house if the gentleman had been taken bad, and they might like to know a man was standing by.”

“How long did you stand by?”

“It was only a minute or two before the light went out.”

“You say you noticed the light first at half past twelve. You did not approach the house then?”

“No.”

“Why not?”

“I did not think there was need. It was only when I passed the house half an hour later. The light was still on then and it surprised me. While I was standing there the light went out.”

“What were your hours of duty that night?”

“From midnight till 4 a.m.”

“You are on duty every night on that beat between those hours?”

“No, we take it in turns.”

“How often would that period fall to you?”

“Every six days.”

“So on five days out of six you would have no opportunity of observing the accused's house at those hours of the night.”

“That is correct.”

“Then you are not really in a position to say whether it was unusual for a light to be on at that time?”

“I had never seen it before.”

“You saw the light through the curtains?”

“I saw it between the curtains.”

“The curtains were not properly drawn?”

“There was a streak of light between them.”

“If they had been properly drawn, you could not have told whether there was a light in that room or not?”

“I can't say.”

With a shrug of his shoulders Sir Ernest sat down.

Again Mr Bairns asked his witness only one question.

“You have no doubt that, between 12.30 and I a.m., there was a light in a first-floor room in the accused's house which struck you as unusual?”

“That is correct.”

Sir Ernest appealed to the judge.

“My lord, I fear I must trespass on your indulgence again. Matters have been raised which it is only fair that the accused should have a chance of answering. Have I your permission to put him in the box again for a minute or two?”

“I suppose so,” said the judge with a sigh.

Mr Todhunter, who had managed to preserve a masklike demeanour during the last half-hour, at grave risk to his life was tenderly escorted once more into the witness box.

“Mr Todhunter,” said Sir Ernest in tones of rich commiseration, “can you say whether a light was on in a first-floor room of your house between the hours of 12.30 and 1 a.m. on the third of December last?”

“I haven't the faintest idea.”

“Can you suggest a possible explanation?”

“Very easily. I am a poor sleeper. I frequently wake up in the night. When I think I am not likely to sleep again for some time, I turn on the light and read.”

“That happens often?”

“Very often.”

“What kind of curtains have you in your bedroom?”

“Heavy rep, lined with casement cloth,” replied Mr Todhunter glibly. He was not going to be caught out over a matter of domestic detail.

“They would exclude any artificial light inside the room from being seen outside?”

“I imagine so.”

“Are they usually closely drawn at night?”

“So far as I know.”

Sir Ernest grasped the bull firmly by the horns.

“Mr Todhunter, did you on the night of December the third leave your house, make a journey to Miss Norwood's garden, there fire off your revolver near the summer house for the first time and return to your home about 12.30 a.m.?”

Mr Todhunter stared at him. “Would you mind saying that again?”

Sir Ernest repeated the question.

“Good gracious, no,” said Mr Todhunter.

Sir Ernest looked enquiringly at Mr Bairns, but the latter, without taking his eyes off the ceiling, mutely shook his head.

“Thank you, Mr Todhunter,” said Sir Ernest.

The court then adjourned for the day—not, Mr Todhunter felt, before it was time. The strain was becoming more severe than he cared about.

4

“So that's what he was getting at?” said Mr Todhunter as, wrapped in rugs, the taxi drew clear of the staring crowd.

“That's it. Damned ingenious, eh? Clever fellow, Bairns,” said Sir Ernest ungrudgingly.

Mr Chitterwick ventured to supply the comment that seemed to be called for.

“But you were cleverer. Your cross-examination disposed of the theory altogether.”

Sir Ernest beamed. “I fancy I gave it a shrewd knock. But we can't count on it. Juries are queer cattle. This one's going to acquit our friend here if they can find half a chance.”

“You really think that?” said Mr. Chitterwick anxiously.

“Well, it just doesn't do to be too optimistic, that's all.” Sir Ernest rubbed his rosy jowls. “I wonder where he got hold of that idea? It's really damned ingenious. Suppose you didn't really carry out any midnight expedition along those lines, Todhunter?”

“Don't be a damned fool,” snapped Mr Todhunter savagely.

“Now, now,” said Sir Ernest in alarm and preserved a subdued silence until the taxi decanted him at his club.

CHAPTER XVIII

The next morning Mr Bairns developed his theory in detail.

There were two major facts, he contended, which the prosecution relied on to link the present accused with the crime: his possession of the dead woman's bracelet and the probability that the only bullet found in the summerhouse had not been fired from the revolver belonging to Vincent Palmer—the inference of course being that it had been fired from the accused's.

But when more closely examined, both these facts were valueless. The possession of the bracelet proved only one thing: that the accused had been in contact with the dead woman. It did not even prove that he had been in contact with her after death, for she might have handed it over to him in life, to have a stone reset or a copy made or for any other feasible reason. Nevertheless the police were prepared to admit that Mr Todhunter might have been on the scene after the death; what they were not prepared to admit was that he had had any hand in it.

As for the revolver bullet—well, really! implied Mr Bairns.

This bullet had been found in a beam in a remote corner of the summerhouse. It must have been an almost incredibly bad shot that placed it there, so far out of the line of aim. Moreover Mr Todhunter had apparently forgotten all about this second bullet (a second bullet only according to his own account), in spite of the fact that he would have been reminded of it by the fact that there would be two empty shells left in the chamber for him to dispose of and not one. He had in fact only remembered it, most conveniently, when two independent witnesses were present to look for it. This alone was striking enough.

To make the episode more striking still, the jury had heard a witness who testified to the fact that she had heard a sound very like a shot coming from the direction of the summerhouse on a certain night and another witness who was in a position to swear that on that same night the accused had a light in his house at an hour which was unusual—which at least meant that he was awake, if not up and about. It was all very well to suggest other explanations for these facts: the facts remained.

What was the inference from them? Why, surely that Mr Todhunter's story of the second bullet was false. It had not been fired so far back as last September. It had been fired in December. By that time Mr Todhunter, who apparently had believed at one time that he had only to go to the police and accuse himself of any crime in order to be instantly arrested, had realised that there was simply no case against him at all. He had therefore set to and manufactured one. The first requisite in such a case was obviously a bullet fired from his own gun. He had therefore gone, at some time just before midnight on the second of December and fired one. And no doubt on the same journey he made those traces of his progress across the gardens which were solemnly discovered the next morning. And on this next morning, too, in the presence of two witnesses, he conveniently “remembered” that second shot. Was not this a far more probable explanation, supported as it was by direct evidence, than the wild assertions of the accused—or the self-accused, perhaps he should be called? It had the advantage, too, of explaining those useful footmarks, broken twigs and so forth duly noted by the two witnesses on the trail across the gardens. For otherwise was it not contrary to all reason and experience to believe that such a trail could persist, in this country of all countries, for months and through the rain and ravage of an English winter? Hardly!

Examine Mr Todhunter's story. It is all assertions. There is no proof of a single item. Take an instance at random. Take the throwing away of the one piece of incontrovertible evidence, the fatal bullet. Mr Todhunter says he threw it away himself. But we have only his word for it. And it is a word upon which, in the circumstances, we cannot rely. We have noted already how extraordinary such an action was, but we only questioned the motive, not the action itself. Question that action and what do we find? Why, that the probability is that it existed only in Mr Todhunter's generous imagination; that he never threw any bullet away himself, but that he did know that one had been thrown—knew who had thrown it—may even have seen it thrown. Proof . . . proof, that was what was needed in a court of law, and that was just what was lacking in this fantastic case of self-accusation—the most fantastic, Mr Bairns ventured to say, that had ever been known in any British court.

Note how the self-accused had changed his story. He admits himself that the story with which he went to the police in the first place was untrue. Why was it untrue? Because he thought it would sound more plausible than the truth. Is that not the clue to the whole riddle? When a plausible explanation is required upon any point, there is Mr Todhunter all ready with it. But that does not mean that it is the truth. And when you ask for proof, the answer invariably is: “There is no proof. You must believe what I say.” That is no way to present a case which anyone can take seriously.

And so on. And so forth.

Mr Todhunter had given up listening long ago. His hands held firmly over his ears, he huddled on his chair in the lonely dock, abandoned to despair. There was no use trying even to keep up appearances. The case was lost. The man Bairns had given it away with both hands. Palmer was doomed.

When Sir Ernest rose to make the concluding speech for the prosecution, Mr Todhunter did not even look up. Sir Ernest was a good man, but not the best man in the world could cope with that kind of thing, with all the weight of police prestige behind it.

2

Sir Ernest, however, did not seem to realise the impossibility of his task. His air as he began was positively jaunty.

“May it please your lordship. Members of the jury. There is no need for me to emphasise the remarkable nature of this case. It is unique in the annals of British justice in more than one respect, but not least in this: that prosecution and defence are substantially at one on the main issue, that is to say, upon the question of whose finger actually pulled the fatal trigger, and are united against an intervening party who has, properly speaking, no standing in this court at all. But it was felt right that the case should be put before you for a verdict for which neither I nor my friend Mr Jamieson ask, that is to say, the verdict of not guilty; and I am bound to add that counsel who has just addressed you put that case as well and as cogently as such a case could be put. His ingenuity must have been as apparent to you as it was to me.

“But it was only ingenuity. He says, for instance, that the case for the prosecution rests merely on the assertions of the accused himself, that there is not an iota of real proof for a single item of it, that every action which the accused admits is open to two interpretations. But apply those same strictures to the case against Vincent Palmer as it was presented in another court. Do they not apply even more forcibly there? You have read the evidence in that case. Was there an atom of real proof that Palmer ever committed this crime? I submit that there was not one single atom. The case against Palmer consisted of nothing but inferences from beginning to end. Would my friend Mr Bairns then say that inferences made by the police are admissible, but inferences and assertions made by a private individual are nothing but nonsense? I am sure he would not. Yet that is, logically speaking, what seems to have been the main plank of his platform.

“But in accusing the man now in the dock of having committed this crime we do not by any means, as my friend Mr Bairns has suggested, rely on his assertions alone. My friend says we have no evidence. I retort that we have overwhelming evidence. You have heard that evidence. It is for you to say whether it was not as much stronger as the weak stuff that passed for evidence against the young man Palmer as champagne is stronger than ginger wine.

“Let me remind you again of the course of events which has brought the accused to this unhappy situation, just as you heard it in logical sequence from the mouths of witnesses who testified to its truth.”

Sir Ernest then spent an hour and a quarter in painting the picture again of Mr Todhunter's temptation and fall, and the colours which he laid on it were of the richest.

As he listened Mr Todhunter's attitude changed. Higher and higher rose his little bald head, down dropped his hands, his back straightened, an incredulous smile appeared unwittingly upon his face, hope began to spring once more within his bony breast. For Sir Ernest was wielding the brush of an artist. To hear him, even Mr Todhunter began to realise once more that he was a villain of the deepest dye.

He stole a look at the jury and caught the eye of a fat tradesman in a check suit. The fat tradesman looked hastily away. Mr Todhunter nearly cackled out loud in glee.

Gradually Sir Ernest approached his climax.

“Was it the finger of the accused that tightened round the trigger which fired the fatal shot? That is the real issue of this case. You may feel that the motives which prompted the action were of an intolerable presumption, or you may feel that they were not altogether ignoble. You must pay no attention to either. You are the judges of fact, not motive, and you must deliver your verdict accordingly. It is my duty to suggest to you that his action was deliberate; my friend for the defence will contend that it was, at the last moment, no more than what might be regarded as a culpable accident.

“But you have not to decide merely between us. At this moment another man lies under sentence of death for this crime. You have seen him in the box; you can judge his demeanour for yourselves. You have heard the arguments and the reasons upon which this man was condemned; you have heard the present accused tell what we put to you as the real story of this terrible crime, and you have heard him recount the efforts, the truly desperate efforts he has made to right a great wrong.

“For in the contention that a terrible legal blunder has been committed my friend for the defence and I are united. We would impress it upon you with all the earnestness at our command. We ask you to assess the tortuous arguments and the subtle twistings of fact, which you have heard put forward on behalf of the police, at their true value; we ask you to accept the simple, not the complicated explanation.

“The man now sitting on the dock bears a terrible responsibility. We counsel share it with him. He cannot speak to you for himself; he relies upon us to convince you of the truth. For, whatever may be said of his earlier action, ever since he heard that an innocent man had been accused of the crime which he has told you he committed, Mr Todhunter's conduct has been irreproachable. So vehement indeed have been his efforts to set right this wrong that counsel for the police referred to him as an old friend of the family which he is trying to save. That is not so. As you have heard, they are almost strangers to him. He had met the man who has been condemned elsewhere only twice in his life, and only for a few minutes each time. There is no such altruism here as has been suggested. Mr Todhunter is not trying to lay down his life for a friend. But his aim is no less great. He has only a few weeks—it may be only a few days—to live. Every hour of those weeks, every minute of those days he is devoting to putting this terrible blunder right; do you see that when his time comes to die, he will not have to perish in the dreadful misery of knowing that another man must suffer for the crime that was his.

“Members of the jury, my responsibility has ended. It is passing to you. In your hands you hold the fate, not of one man, but two. May heaven guide you to deliver a true judgment.”

Sir Ernest's voice broke as he uttered the last words. He stood for a few moments looking intently at the jury. Then he sat down.

The court adjourned for the midday recess in a silence that was perhaps the most genuine tribute that Sir Ernest had ever received.

3

Mr Todhunter believed Sir Ernest worthy of any tribute that human man could bestow on him.

“That was the finest speech I've ever heard in any law court,” he told him as they left the court side by side. Mr Todhunter had never heard a speech in a law court before.

“Ah, but we're not out of the wood yet,” twinkled Sir Ernest, quite himself again. “Did you notice the judge? There was a nasty look in the old bird's eye just as I was getting on the jury's soft side. I didn't like the look of it at all.”

“I think we're fairly safe now,” opined Mr Todhunter, who was not usually given to optimism. “What do you say, Chitterwick?”

“I think,” said Mr Chitterwick carefully, “that we've been very lucky in our counsel.”

“I'll buy you a drink for that,” said Sir Ernest jovially. “Go on back to your private dining room, Todhunter. You know you can't be in on this.”

4

The first twenty minutes after lunch were occupied by some gallant efforts on the part of Mr Jamieson to make bricks without straw.

There was little he could say, for he had no case at all; and in the end, after identifying himself with all the pertinent observations of his learned friend for the prosecution and throwing a few stones at the head of the absent Mr Bairns, Mr Jamieson could do little more than appeal to the jury to find Mr Todhunter guilty of manslaughter only and not murder, on the rather inadequate ground that it would be a bit of a shame to hang him.

Then, at last, the judge began to sum up.

“Members of the jury,” he said in a voice thin with age but perfectly clear, “it now becomes my duty to go through with you the evidence that has been given in this case; a case which, as counsel have pointed out, is possibly unique in these courts. Another man, as you know, is now lying under sentence of death for this same crime; and it is in order to save this man, believing him to be innocent, that Mr Furze has told us he has brought this action for murder. There is no reason to doubt Mr Furze's motives or to suggest that he has not been actuated by anything but the highest principles; and it is only right to pay tribute to the disinterestedness and public spirit that he has shown. Whether he was right in his belief or not is now for you to decide.