Trial and Error (29 page)

“It makes no difference to you that this case has been brought at the instigation of a private citizen and not, as is almost invariably so in a case of this importance, by the Crown. Nevertheless it is right that you should ask yourselves why the Crown did not bring it and why the proper authorities, although in possession of all the evidence and statements that you have heard, did not see fit to act upon them—or perhaps I should say, saw fit not to act upon them. As their counsel, Mr Bairns, has pointed out to you a mere confession alone is not enough to require action. Instances of false confession are not rare in criminal history. They may be made from varying motives, from insanity to a desire to shield the guilty; and often they are repudiated once the guilty person is safe. You will therefore not be too strongly influenced by the confession which the accused in this instance has made but will decide the case solely on the evidence which has been brought to substantiate that confession.

“I will now review that evidence for you, and in view of the importance of the case, I shall do so in some detail.”

The judge was as good as his word. He reviewed the evidence, slowly, methodically and quite fairly, for the rest of that afternoon and at once resumed the task when the Court assembled again the next morning.

As he listened to the ancient voice droning on Mr Todhunter went through a fine range of emotions.

The evidence, heard through this calm, dispassionate voice, somehow sounded far less imposing than when rolled forth in Sir Ernest's robust periods. In fact it sounded uncommonly thin. There was plenty of evidence of intention but none of performance. Mr Todhunter, who had realised this well enough but somehow had persuaded himself that it did not much matter, grew more and more perturbed. It was impossible to say that the judge was minimising it in any way, yet the effect was of minimisation. Mr Todhunter realised, with some disquiet, how much any case owes to oratory in the presenting of it.

One passage in the summing up which occurred fairly early that morning increased his disquiet. The judge had been dealing with the evidence that pointed to Mr Todhunter having been on the scene of the crime after, rather than before, the death. He paused for a moment or two and then added:

“In this connection I ought to warn you that, even should you find the present accused guilty, that is not necessarily to determine that the verdict rendered in the previous case was an incorrect one. There is a possibility which I think has not been put before you at all but which nevertheless you must consider: whether Palmer and Todhunter were not acting in conjunction. There is no evidence to show that they were, but equally there is no evidence to show that they were not. It is a possibility which you must bear in mind, and I mention it lest you might be tempted for sentimental reasons to bring in the verdict of guilty in this case with the idea of perhaps saving the life of a young and vigorous man at the expense of one which is doomed in any case. That would be a most improper feeling, and I am sure you will not allow it to influence you. Nor, as I must warn you, if you did, would it necessarily have the effect intended.”

Mr Todhunter was perturbed. Perhaps he had been relying too much on just such a sentiment and its unconscious influence on the minds of the jury. He had certainly been relying on a verdict of guilty in his own case to establish, as an inescapable corollary, the innocence of Palmer. Yet now it seemed that through such a technical and unfair little loophole the authorities would still be enabled to keep their grip on that unfortunate young man.

Mr Todhunter wanted to get up and shout:

“He is innocent! Cut the cackle and come down to truth. I tell you he is innocent—I, who have the best of reasons to know it.”

It was true enough that Mr Todhunter, almost alone in the world, had the best of reasons to know that Palmer was innocent; but it was proving a difficult job to convince other people of that simple truth. Mr Todhunter wished that a fact could stand up as hard and solid as a block of granite so that no one could dispute it.

It was, however, not until the judge came to the end of his summing up that Mr Todhunter simultaneously arrived at the end of his tether.

Up to that point the judge had really behaved very well indeed. Refraining from the temptation to tell other people how to live their lives in accordance with the law books, which few judges ever seem able to resist, he had confined himself strictly to the matter in hand. But in the end he succumbed; and, as usual, his last words might have suggested that he was set up in that exalted position to be a judge, not of law, but of morals and ethics.

“Members of the jury, it may be that some of you have had in mind yet another verdict, which has not been suggested to you at all. I refer to the verdict of ‘guilty but insane.' It is customary for judges to indicate, when the defence has suggested such a verdict, whether it would be admissible on the facts of the case. In case therefore any of you were meditating a verdict of this nature, I feel it advisable to tell you that in the absence of all evidence on the point such a verdict would be quite inadmissible. It has in fact, quite properly, not been suggested by the defence; and I only mention the matter because you may think that the very nature of the accused's admissions seem to indicate some degree of insanity.

“You may indeed feel that the intolerable presumption to which he has admitted, and in which he seems to glory, of setting himself up as a judge of life and death over his fellow men, may show a degree of megalomania amounting to insanity. But the law defines insanity very closely, and it is quite certain that the accused throughout realised exactly what he was doing or intending to do; and that is the crux of the matter.

“In the same way you must be on your guard against allowing your disgust for him—the disgust which all right-minded persons must feel—to influence your decision. If you feel that the case against him has not been made out, it is your duty to return a verdict of not guilty, irrespective of the contempt and loathing with which his cold-blooded machinations may have inspired you. That he was at one time meditating some kind of senseless, imbecile assassination of some quite innocent person, there is the evidence which I have gone through already; you must decide whether the wild talk in which he seems to have indulged was merely raving to impress his friends or whether there was a sinister substratum of intention

“Nevertheless, as I say, although you may consider him, and perhaps not unjustly, in the light of an inhuman and irresponsible person, with an abominably perverted conception of his duties as a member of society, you must not allow your verdict to be coloured by your indignation any more than you must allow it to be prejudiced by the fact that another man has already been found guilty of the same crime. You are to judge this case on the facts that have been presented to you and those alone.”

The judge then concluded with a few illuminating remarks upon murder and manslaughter and what was necessary to produce a verdict in either case and dismissed the jury to talk it over.

5

Mr. Todhunter could hardly contain himself.

“What business is it of that old fool's to call me disgusting?” he burst out almost before he was out of the dock. “I don't call him disgusting to his face, although he cleans his ears in public, I never heard a more gratuitous exhibition of smugness.”

“Oh, they all go on like that,” returned Sir Ernest easily. “I shall one day.”

“Then it's time they were stopped and confined to their proper jobs,” stormed Mr Todhunter. “Contempt and loathing indeed? . . . No one has a poorer opinion of me than I have myself, but am I contemptible and loathsome?” demanded Mr Todhunter of Mr Chitterwick with singular ferocity.

“No, no,” protested Mr Chitterwick. “Not in the least. Er—precisely the reverse, if anything.”

“If anything? I must be something, mustn't I?”

“Yes, I said so,” hurriedly agreed Mr Chitterwick. “I said, the reverse.”

“And how can I be both imbecile and sane—and responsible and irresponsible at the same time?” continued Mr Todhunter, his indignation unflagging. “Eh? Tell me that. And does it need megalomania to see that an unpleasant person is better out of the world than in it, for the world's own sake? Damn and blast! I never heard such balderdash in my life.”

“Now, now,” said Sir Ernest in alarm, for Mr Todhunter really seemed to be growing more, rather than less, agitated. And he added in an undertone to Mr Chitterwick: “Where's that damned doctor?”

Fortunately the doctor appeared before Mr Todhunter could actually burst, and led his patient away to work off his tantrum in seclusion.

There was, however, one good result of Mr Todhunter's temper. It lasted him for over two hours and so occupied nearly the whole period of the jury's absence. In consequence the strain of waiting for the verdict was considerably relieved.

The jury were absent for two hours and forty minutes. Then an official brought news that they were returning to court.

“Now look here, Todhunter,” said the doctor anxiously, “these next two minutes are going to be a terrible strain for you. You've got to hold yourself together with both hands.”

“I'm all right,” muttered Mr Todhunter, a little white.

“Fancy yourself in a dream or something, or repeat a piece of poetry,” urged the doctor.
“Horatius at the Bridge.
Know it? And be prepared for any verdict. Don't let anything come as a shock. Sure you won't let me give you an injection?” The doctor had already offered an injection to deaden his patient's reactions and slow up the action of his heart.

“No,” snapped Mr Todhunter, leading the way. “It's over now. The verdict's been decided on, one way or another. There's nothing more to be done; and if with luck it's guilty, the quicker I pass out, the better. Don't want me to live to be hanged, do you?”

“All right, all right, have it your own way,” returned the doctor. “You're the lucky one, either way.”

Mr Todhunter snarled.

In court the rapt attention of the onlookers was divided between Mr Todhunter and the returning jury. As always the faces of the latter were scanned, not least anxiously by Mr Todhunter himself, in an effort to read their minds; and as always, their solemn expressions could be interpreted in any way the onlooker chose.

Mr Todhunter held his breath and laid an unconscious hand upon his chest as if to check disaster at least till the verdict should be known. There was no need for him to try to fancy himself in a dream; he felt in a dream. The whole scene seemed fantastic, and not least his own part in it. Was it really himself, in a court of criminal law, being tried for his life? Was it really on him that these men were about to pronounce a verdict? The thing was incredible.

In a kind of trance Mr Todhunter heard the clerk of the court address the jury.

“Members of the jury, are you agreed upon your verdict?”

The foreman, a tall, middle-aged man with an untidy moustache (Mr Todhunter had set him down as an estate agent, for no particular reason), answered firmly enough:

“We are.”

“Do you find the accused guilty of the murder of Ethel May Binns, or not guilty?”

The foreman cleared his throat.

“Guilty.”

Mr Todhunter stared down at his hands. They seemed an unusual colour. Then he realised that he was gripping the ledge of the dock so tightly as to blanch not only his knuckles but the whole backs of his hands.

He relaxed. The jury had found him guilty. Well, that was all right. Of course. Mr Todhunter had known all along that any sensible jury, like this one, would be certain to find him guilty. There was no strain in that at all.

Mr Todhunter bowed slightly to the jury. The jury did not bow back.

He became aware that the clerk was now addressing him.

“Lawrence Butterfield Todhunter, you have been found guilty of wilful murder; have you anything to say why the Court should not pronounce sentence upon you?”

Mr Todhunter repressed a mad impulse, first to giggle and then to snap at the clerk: “Don't call me Butterfield.” He pulled himself together and replied:

“Nothing at all.”

More or less master of himself now, he watched with interest a little square of black cloth being laid by an official on top of the judge's wig.

So that's the black cap, thought Mr Todhunter; well, all I can say is that it makes the judge look very silly.

“Lawrence Butterfield Todhunter,” came the aged voice for the last time, “it is now my duty to pass sentence upon you, in accordance with the verdict which the jury have pronounced upon you, and I shall do so without further comment. Is there any question of law, Sir Ernest, as to the sentence I have to pronounce? You will understand what I mean.”

Sir Ernest bobbed up. “So far as I can ascertain, my lord, no question.”

“Then, Lawrence Butterfield Todhunter, the sentence of this Court upon you is that you be taken from this place to a lawful prison and thence to a place of execution, and that you there be hanged by the neck until you are dead; and that your body be afterwards buried within the precincts of the prison in which you shall have been confined after your conviction, and may the Lord have mercy on your soul.”

“Amen,” said the sheriff's chaplain, at the judge's side.

Mr Todhunter, no longer bearing any grudge, bowed with respectful courtesy to the judge.

“Thank you, my lord. May I make a final request?”

“I'm afraid I can't listen to you now.”

“I'm afraid,” retorted Mr Todhunter, courteous still but firm, “that you must listen, my lord. My request is that I may now be arrested.”

Mr Todhunter was gratified to perceive that his words had caused what would undoubtedly be described in the papers the next morning as a sensation. In the solemn routine of verdict and sentence those responsible had quite overlooked the fact that Mr Todhunter had never been arrested. Now, in accordance with the verdict, arrest was automatic.