CHAPTER XV
Although no hint of the defence was supposed to transpire, the magicwords "No precedent" were whispered about in legal circles as the dayfor Penreath's trial approached, and invested the case with more thanordinary interest in professional eyes. Editors of London legal journalsendeavoured to extract something definite from Mr. Oakham when hereturned to London to brief counsel and prepare the defence, but thelunches they lavished on him in pursuit of information might have beenspent with equal profit on the Sphinx.
The editors had to content themselves with sending shorthand writers toNorwich to report the case fully for the benefit of their circle ofreaders, whose appetite for a legal quibble was never satiated byrepetition.
On the other hand, the case aroused but languid interest in the breastsof the ordinary public. The newspapers had not given the story of themurder much prominence in their columns, because murders were only goodcopy in war-time in the slack season between military offensives, and,moreover, this particular case lacked the essentials of what moderneditors call, in American journalese jargon, "a good feature story." Inother words, it was not sufficiently sensational or immoral to appeal tothe palates of newspaper readers. It lacked the spectacular elements ofa filmed drama; there was no woman in the case or unwritten law.
It was true that the revelation of the identity of the accused man hadaroused a passing interest in the case, bringing it up from paragraphvalue on the back page to a "two-heading item" on the "splash" page, butthat interest soon died away, for, after all, the son of a Berkshirebaronet was small beer in war's levelling days, when peers worked inoveralls in munition factories, and personages of even more exalted ranksold pennyworths of ham in East-end communal kitchens.
Nevertheless, because of the perennial interest which attaches to allmurder trials, the Norwich Assizes Court was filled with spectators onthe dull drizzling November day when the case was heard, and the factthat the accused was young and good-looking and of gentle birth probablyaccounted for the sprinkling of well-dressed women amongst the audience.The younger ones eyed him with sympathy as he was brought into the dock:his good looks, his blue eyes, his air of breeding, his well-cutclothes, appealed to their sensibilities, and if they had been given theopportunity they would have acquitted him without the formality of atrial as far "too nice a boy" to have committed murder.
To the array of legal talent assembled together by the golden wand ofCosts the figure of the accused man had no personal significance but theactual facts at issue entered as little into their minds as into thepitying hearts of the female spectators. The accused had no individualexistence so far as they were concerned: he was merely a pawn in thegreat legal game, of which the lawyers were the players and the judgethe referee, and the side which won the pawn won the game. As thisparticular game represented an attack on the sacred tradition ofPrecedent, both sides had secured the strongest professional intellectspossible to contest the match, and the lesser legal fry of Norwich hadgathered together to witness the struggle, and pick up what points theycould.
The leader for the prosecution was Sir Herbert Templewood, K.C., M.P., apolitical barrister, with a Society wife, a polished manner, and adeadly gift of cross-examination. With him was Mr. Grover Braecroft, adour Scotch lawyer of fifty-five, who was currently believed to know thelaw from A to Z, and really had an intimate acquaintance with those fiveletters which made up the magic word Costs. Apart from this valuableknowledge, he was a cunning and crafty lawyer, picked in the presentcase to supply the brains to Sir Herbert Templewood's brilliance, and dothe jackal work which the lion disdained. The pair were supported by aCrown Solicitor well versed in precedents--a little prim figure of a manwho sat with so many volumes of judicial decisions and reports of testcases piled in front of him that only the upper portion of his grey headwas visible above the books.
The defence relied mainly upon Mr. Reginald Middleheath, the eminentcriminal counsel, who depended as much upon his portly imposing stagepresence to bluff juries into an acquittal as upon his legalattainments, which were also considerable. Mr. Middleheath's cardinalarticle of legal faith was that all juries were fools, and should betreated as such, because if they once got the idea into their heads thatthey knew something about the case they were trying they were bound toconvict in order to sustain their reputation for intelligence. One ofMr. Middleheath's favourite tricks for disabusing a jury of the beliefthat they possessed any common sense was, before addressing them, tostare each juryman in the face for half a minute or so in turn with hispiercing penetrative eyes, accompanying the look with a pityingcontemptuous smile, the gaze and the smile implying that counsel for theopposite side may have flattered them into believing that theirintelligences were fit to try such an intricate case, but they couldn'tdeceive _him_.
Having robbed the jury of their self-esteem by this means, Mr.Middleheath would proceed to put them on good terms with themselvesagain by insinuating in persuasive tones that the case was onecalculated to perplex the most astute legal brain. He would franklyconfess that it had perplexed him at first, but as he had mastered itsintricacies the jury were welcome to his laboriously acquired knowledgein order to help them in arriving at a right decision. Mr. Middleheath'sjunior was Mr. Garden Greyson, a thin ascetic looking lawyer whoseknowledge of medical jurisprudence had brought him his brief in thecase. Mr. Oakham sat beside Mr. Greyson with various big books in frontof him.
The judge was Mr. Justice Redington, whose presence on the bench wasalways considered a strengthening factor in the Crown case. Judgesdiffer as much as ordinary human beings, and are as human in theirpeculiarities as the juries they direct and the prisoners they try.There are good-tempered and bad-tempered judges, harsh and tenderjudges, learned and foolish judges, there are even judges with an eye toself-advertisement, and a few wise ones. Mr. Justice Redington belongedto that class of judges who, while endeavouring to hold the balancefairly between the Crown and the defence, see to it that the accuseddoes not get overweight from the scales of justice. Such judges takeadvantage of their judicial office by cross-examining witnesses for thedefence after the Crown Prosecutor has finished with them, in the effortto bring to light some damaging fact or contradiction which the previousexamination has failed to elicit. In other respects, Mr. JusticeRedington was a very fair judge, and he worked as industriously as anynewspaper reporter, taking extensive notes of all his cases with a goldfountain pen, which he filled himself from one of the court inkstandswhenever it ran dry. In appearance he was a florid and pleasant lookingman, and his hobby off the bench was farming his own land and breedingprize cattle.
There were the usual preliminaries, equivalent to the clearing of thecourse or the placing of the pieces, which bored the regular habitues ofthe court but whetted the appetites of the more unsophisticatedspectators. First there was the lengthy process of empanelling a jury,with the inevitable accompaniment of challenges and objections, untilthe most unintelligent looking dozen of the panel finally foundthemselves in the jury box. Then the Clerk of Arraigns gabbled over thecharges: wilful murder of Roger Glenthorpe on 26th October, 1916, andfeloniously stealing from the said Roger Glenthorpe the sum of L300 onthe same date. To these charges the accused man pleaded "Not guilty" ina low voice. The jury were directed on the first indictment only, andSir Herbert Templewood got up to address the jury.
Sir Herbert knew very little about the case, but his junior was wellinformed; and what Mr. Braecroft didn't know he got from the CrownSolicitor, who sat behind the barristers' table, ready to lean forwardat the slightest indication and supply any points which were required.Under this system of spoon-feeding Sir Herbert ambled comfortably along,reserving his showy paces for the cross-examination of witnesses for thedefence.
Sir Herbert commenced by describing the case as a straightforward onewhich would offer no difficulty to an intelligent jury. It was true thatit rested on circumstantial evidence, but that evidence was of thestrongest nature, and pointed so clearly in the one direction, that thejury coul
d come to no other conclusion than that the prisoner at the barhad committed the murder with which he stood charged.
With this preamble, the Crown Prosecutor proceeded to put together thechain of circumstantial evidence against the accused with the deliberatelogic of the legal brain, piecing together incidents, interpretingclues, probing motives, and fashioning together the whole tremendousapparatus of circumstantial evidence with the intent air of a manbuilding an unbreakable cage for a wild beast. As Colwyn hadanticipated, the incident at the Durrington hotel had been dropped fromthe Crown case. That part of the presentment was confined to thestatement that Penreath had registered at the hotel under a wrong name,and had left without paying his bill. The first fact suggested that theaccused had something to hide, the second established a motive for thesubsequent murder.
Sir Herbert Templewood concluded his address in less than an hour, andproceeded to call evidence for the prosecution. There were ninewitnesses: that strangely assorted pair, the innkeeper and Charles, thedeaf waiter, Ann, the servant, the two men who had recovered Mr.Glenthorpe's body from the pit, the Heathfield doctor, who testified asto the cause of death, Superintendent Galloway, who gave the court theresult of the joint investigations of the chief constable and himself atthe inn, Police-Constable Queensmead, who described the arrest andInspector Fredericks, of Norwich, who was in charge of the Norwichstation when the accused was taken there from Flegne. In order to saveanother witness being called, Counsel for the defence admitted thataccused had registered at the Grand Hotel, Durrington, under a wrongname, and left without paying his bill.
Mr. Middleheath cross-examined none of the witnesses for the prosecutionexcept the last one, and his forensic restraint was placed on record bythe depositions clerk in the exact words of the unvarying formulabetween bench and bar. "Do you ask anything, Mr. Middleheath?" Mr.Justice Redington would ask, with punctilious politeness, when the CrownProsecutor sat down after examining a witness. To which Mr. Middleheathwould reply, in tones of equal courtesy: "I ask nothing, my lord."Counsel's cross-examination of Inspector Fredericks consisted of twoquestions, intended to throw light on the accused's state of mind afterhis arrest. Inspector Fredericks declared that he was, in his opinion,quite calm and rational.
Mr. Middleheath's opening address to the jury for the defence was brief,and, to sharp legal ears, vague and unconvincing. Although he pointedout that the evidence was purely circumstantial, and that in the absenceof direct testimony the accused was entitled to the benefit of anyreasonable doubt, he did not attempt to controvert the statements of theCrown witnesses, or suggest that the Crown had not established its case.His address, combined with the fact that he had not cross-examined anyof the Crown witnesses, suggested to the listening lawyers that he hadeither a very strong defence or none at all. The point was left insuspense for the time being by Mr. Justice Redington suggesting that, inview of the lateness of the hour, Counsel should defer calling evidencefor the defence until the following day. As a judicial suggestion is acommand, the court was adjourned accordingly, the judge first warningthe jury not to try to come to any conclusion, or form an opinion as towhat their verdict should be, until they had heard the evidence for theprisoner.
When the case was continued the next day, the first witness called forthe defence was Dr. Robert Greydon, an elderly country practitioner withthe precise professional manner of a past medical generation, who statedthat he practised at Twelvetrees, Berkshire, and was the family doctorof the Penreath family. In reply to Mr. Middleheath he stated that hehad frequently attended the late Lady Penreath, the mother of theaccused, for fits or seizures from which she suffered periodically, andthat the London specialist who had been called into consultation on oneoccasion had agreed with him that the seizures were epileptic.
"I want to give every latitude to the defence," said Sir HerbertTemplewood, rising in dignified protest, "but I am afraid I cannotpermit this conversation to go in. My learned friend must call theLondon specialist if he wants to get it in."
"I will waive the point as my learned friend objects," said Mr.Middleheath, satisfied that he had "got it in" the jury's ears, "andcontent myself with asking Dr. Greydon whether, from his own knowledge,Lady Penreath suffered from epilepsy."
"Undoubtedly," replied the witness.
"One moment," said the judge, looking up from his notes. "Where is thisevidence tending, Mr. Middleheath?"
"My lord," replied Mr. Middleheath solemnly, "I wish the court to knowall the facts on which we rely."
The judge bowed his head and waved his gold fountain-pen as anindication that the examination might proceed. The witness said thatLady Penreath was undoubtedly an epileptic, and suffered from attacksextending over twenty years, commencing when her only son was five yearsold, and continuing till her death ten years ago. For some years theattacks were slight, without convulsions, but ultimately the grand malbecame well developed, and several attacks in rapid successionultimately caused her death. In the witness's opinion epilepsy was anhereditary disease, frequently transmitted to the offspring, if eitheror both parents suffered from it.
"Have you ever seen any signs of epilepsy in Lady Penreath's son--theprisoner at the bar?" asked Sir Herbert, who began to divine thedirection of the defence.
"Never," replied the witness.
"Was he under your care in his infancy and boyhood? I mean were youcalled in to attend to his youthful ailments?"
"Yes, until he went to school."
"And was he a normal and healthy boy?"
"Quite."
"Did you see him when he returned home recently?" asked Mr. Middleheath,rising to re-examine.
"Yes."
"You are aware he was discharged from the Army suffering fromshell-shock?"
"Yes."
"And did you notice a marked change in him?"
"Very marked indeed. He struck me as odd and forgetful at times, andsometimes he seemed momentarily to lose touch with his surroundings. Heused to be very bright and good-tempered, but he returned from the warirritable and moody, and very silent, disliking, above all things, to bequestioned about his experiences at the front. He used to be the verysoul of courtesy, but when he returned from the front he refused toattend a 'welcome home' at the village church and hear the vicar read acongratulatory address."
"I hope you are not going to advance the latter incident as a proof of_non compos mentis_, Mr. Middleheath," said the judge facetiously.
In the ripples of mirth which this judicial sally aroused, the littledoctor was permitted to leave the box, and depart for his nativeobscurity of Twelvetrees. He had served his purpose, so far as Mr.Middleheath was concerned, and Sir Herbert Templewood was too good asportsman to waste skilful flies on such a small fish, which would do nohonour to his bag if hooked.
Sir Herbert Templewood and every lawyer in court were by now aware thatthe defence were unable to meet the Crown case, but were going to fightfor a verdict of insanity. The legal fraternity realised thedifficulties of that defence in a case of murder. It would be necessarynot only to convince the jury that the accused did not know thedifference between right and wrong, but to convince the judge, in thefiner legal interpretation of criminal insanity, that the accused didnot know the nature of the act he was charged with committing, in thesense that he was unable to distinguish whether it was right or wrong atthe moment of committing it. The law, which assumes that a man is saneand responsible for his acts, throws upon the defence the onus ofproving otherwise, and proving it up to the hilt, before it permits anaccused person to escape the responsibility of his acts. Such a defenceusually resolves itself into a battle between medical experts and thecounsel engaged, the Crown endeavouring to upset the medical evidencefor the defence with medical evidence in rebuttal.
The lawyers in court settled back with a new enjoyment at the prospectof the legal and medical hair-splitting and quibbling which invariablyaccompanies an encounter of this kind, and Crown Counsel and solicitorsdisplayed sudden activity. Sir Herbert Templewood
and Mr. Braecroft helda whispered consultation, and then Mr. Braecroft passed a note to theCrown Solicitor, who hurried from the court and presently returnedcarrying a formidable pile of dusty volumes, which he placed in front ofjunior counsel. The most uninterested person in court seemed the man inthe dock, who sat looking into a vacancy with a bored expression on hishandsome face, as if he were indifferent to the fight on which hisexistence depended.
The next witness was Miss Constance Willoughby, who gave her testimonyin low clear tones, and with perfect self-possession. It was observed bythe feminine element in court that she did not look at her lover in thedock, but kept her eyes steadily fixed on Mr. Middleheath. Her story wasa straightforward and simple one. She had become engaged to Mr. Penreathshortly before the war, and had seen him several times since he wasinvalided out of the Army. The last occasion was a month ago, when hecalled at her aunt's house at Lancaster Gate. She had noticed a greatchange in him since his return from the front. He was moody anddepressed. She did not question him about his illness, as she thought hewas out of spirits because he had been invalided out of the Army, anddid not want to talk about it. He told her he intended to go away for achange until he got right again--he had not made up his mind where, buthe thought somewhere on the East Coast, where it was cool and bracing,would suit him best--and he would write to her as soon as he gotsettled anywhere. She did not see him again, and did not hear from himor know anything of his movements till she read his description in aLondon paper as that of a man wanted by the Norfolk police for murder.Her aunt, who showed her the paper, communicated with the Penreaths'solicitor, Mr. Oakham. The following day she and her aunt were taken toHeathfield and identified the accused.
"Your aunt took action to allay your anxiety, I understand?" said Mr.Heathfield, whose watchful eye had noted the unfavourable effect of thisstatement on the jury.
The witness bowed.
"Yes," she replied. "I was terribly anxious, as I had not heard from Mr.Penreath since he went away. Anything was better than the suspense."
"You say accused was moody and depressed when you saw him?" asked SirHerbert Templewood.
"Yes."
"May I take it that there was nothing terrifying in hisbehaviour--nothing to indicate that he was not in his right mind?"
"No," replied the witness slowly. "He did not frighten me, but I wasconcerned about him. He certainly looked ill, and I thought he seemed alittle strange."
"As though he had something on his mind?" suggested Sir Herbert.
"Yes," assented the witness.
"Were you aware that the accused, when he went to see you at your aunt'shome before he departed for Norfolk, was very short of money?"
"I was not. If I had known----"
"You would have helped him--is that what you were going to say?" askedMr. Middleheath, as Sir Herbert resumed his seat without pursuing thepoint.
"My aunt would have helped Mr. Penreath if she had known he was inmonetary difficulties."
"Thank you." Mr. Middleheath sat down, pulling his gown over hisshoulders.
The witness was leaving the stand when the sharp authoritative voice ofthe judge stopped her.
"Wait a minute, please, I want to get this a little clearer. You saidyou were aware that the accused was discharged from the Army sufferingfrom shell-shock. Did he tell you so himself?"
"No, my lord. I was informed so."
"Really, Mr. Middleheath----"
The judge's glance at Counsel for the Defence was so judicial that itbrought Mr. Middleheath hurriedly to his feet again.
"My lord," he explained, "I intend to prove in due course that theprisoner was invalided out of the Army suffering from shell-shock."
"Very well." The judge motioned to the witness that she was at libertyto leave the box.
The appearance of Sir Henry Durwood in the box as the next witnessindicated to Crown Counsel that the principal card for the defence wasabout to be played. Lawyers conduct defences as some people playbridge--they keep the biggest trump to the last. Sir Henry representedthe highest trump in Mr. Middleheath's hand, and if he could not scorewith him the game was lost.
Sir Henry seemed not unconscious of his importance to the case as hestepped into the stand and bowed to the judge with bland professionalequality. His evidence-in-chief was short, but to the point, andamounted to a recapitulation of the statement he had made to Colwyn inPenreath's bedroom on the morning of the episode in the breakfast-roomof the Grand Hotel, Durrington. Sir Henry related the events of thatmorning for the benefit of the jury, and in sonorous tones expressed hisprofessional opinion that the accused's strange behaviour on thatoccasion was the result of an attack of epilepsy--petit mal, combinedwith _furor epilepticus_.
The witness defined epilepsy as a disease of the nervous system, markedby attacks of unconsciousness, with or without convulsions. The loss ofconsciousness with severe convulsive seizures was known as grand mal,the transient loss of consciousness without convulsive seizures wascalled petit mal. Attacks of petit mal might come on at any time, andwere usually accompanied by a feeling of faintness and vertigo. Thegeneral symptoms were sudden jerkings of the limbs, sudden tremors,giddiness and unconsciousness. The eyes became fixed, the face slightlypale, sometimes very red, and there was frequently some almost automaticaction. In grand mal there was always warning of an attack, in petit malthere was no warning as a rule, but sometimes there was premonitorygiddiness and restlessness. _Furor epilepticus_ was a medical termapplied to the violence displayed during attacks of petit mal, aviolence which was much greater than extreme anger, and under itsinfluence the subject was capable of committing the most violentoutrages, even murder, without being conscious of the act.
"There is no doubt in your mind that the accused man had an attack ofpetit mal in the breakfast-room of the Durrington hotel the morningbefore the murder?" asked Mr. Middleheath.
"None whatever. All the symptoms pointed to it. He was sitting at thebreakfast table when he suddenly ceased eating, and his eyes grewfixed. The knife which he held in his hand was dropped, but as theattack increased he picked it up again and thrust it into the table infront of him--a purely automatic action, in my opinion. When he sprangup from the table a little while afterwards he was under the influenceof the epileptic fury, and would have made a violent attack on thepeople sitting at the next table if I had not seized him.Unconsciousness then supervened, and, with the aid of another of thehotel guests, I carried him to his room. It was there I noticed foam onhis lips. When he returned to consciousness he had no recollection ofwhat had occurred, which is consistent with an epileptic seizure. I sawthat his condition was dangerous, and urged him to send for his friends,but he refused to do so."
"It would have been better if he had followed your advice. You say it isconsistent with epilepsy for him to have no recollection of whatoccurred during this seizure in the hotel breakfast room. What would aman's condition of mind be if, during an attack of petit mal, hecommitted an act of violence, say murder, for example?"
"The mind is generally a complete blank. Sometimes there is a confusedsense of something, but the patient has no recollection of what hasoccurred, in my experience."
"In this case the prisoner is charged with murder. Could he havecommitted this offence during another attack of _furor epilepticus_ andrecollect nothing about it afterwards? Is that consistent?"
"Yes, quite consistent," replied the witness.
"Is epilepsy an hereditary disease?"
"Yes."
"And if both parents, or one of them, suffered from epilepsy, wouldthere be a great risk of the children suffering from it?"
"Every risk in the case of both persons being affected; some probabilityin the case of one."
"What do you think would be the effect of shell-shock on a person bornof one epileptic parent?"
"It would probably aggravate a tendency to epilepsy, by lowering thegeneral health."
"Thank you, Sir Henry."
Mr. Middleheath resumed his seat, and
Sir Herbert Templewood got up tocross-examine.