"And what about the voice? Was it exactly like your husband's?"
"No, it was rather like, but not exactly. I noticed then that it seemed a little different from what I remembered, and I noticed it again when he was giving evidence."
"I need not ask you whether your husband was in the habit of absenting himself from home, but I should be glad if you could give us some information as to a particular date. Do you know where your husband was on Good Friday in the year 1925?"
"Yes, I remember very well. He was in Wormwood Scrubbs Prison. He came out on Easter Sunday."
Here the judge interposed, though without any great emphasis. "It is hardly necessary for me to remind learned counsel that it is not admissible to refer to previous convictions or delinquencies of the prisoner until the jury have given their verdict."
"That is so, my lord," Thorndyke agreed. "But the submission is that the prisoner is not the person named in the indictment and that the previous convictions of that person do not, therefore, affect him. And I may say that the point which I am trying to elicit is highly material to the defence."
"If you say that the point is material to the defence," the judge rejoined, "I must allow the questions to be put."
Whereupon Thorndyke resumed his examination. "Do you know how long your husband had been in prison?"
"Yes. Six months. I had notice when he was going to be discharged and I went and met him at the prison gate."
"Have you any doubt that the man whom you met at the prison gate was your husband?"
"No, none whatever. I recognized him and he recognized me, and I took him home and gave him a good dinner. Besides I had been present in the police court when he got his sentence."
"At the police court and in the prison, was he known by the name of Anthony Kempster?"
"No. When he was arrested, he gave the name of Septimus Neville, and he stuck to it. They never knew his real name."
"You speak of his real name. Do you know what his real name was, or is?"
"I am not sure. He married me under the name of Anthony Kempster, but I sometimes suspected that that was not his real name. He was very much in the habit of changing his name."
"Did you ever meet with the name of Barton in connection with him?"
"Yes. I think he had a cousin of that name. He was very secret about his letters, as a rule; but I happened to see one that he had left in the pocket of a coat that I had to mend for him, and I saw that it was signed: 'Your affectionate cousin, Andrew Barton.' But, of course, I didn't know that his name was the same as his cousin's."
This concluded Thorndyke's examination; and, as the prosecution had no inkling of the bearing of this witness's evidence on the issue, the cross-examination was tentative and brief. When it was finished and Mrs. Kempster left the box, with a commiserating glance at the prisoner and a final wipe of her eyes, the court, and Andrew, had another surprise; for the witness who followed her was no less a person than Andrew's old friend, Mr. Samuel Montagu.
The new witness, having given his name, deposed that he was a dealer in works of art and that his premises were in New Bond Street. He was a good judge of pictures—he had to be—and his own personal preference was for water-colour paintings, especially interiors and subject pictures of high finish and fine execution. When he had got so far, Thorndyke produced from under his bench a framed and glazed water-colour painting which was conveyed to the witness-box, and handed to the witness; who examined it with profound attention and evident interest. "Have you ever seen that picture before, Mr. Montagu?" Thorndyke asked.
"I have not," was the reply.
"There is, as you see, no signature to the picture. Can you give any opinion as to who the painter was?"
"I can. This picture was painted by Andrew Barton."
"You speak quite positively, as if you were certain."
"I am certain. I was for many years Andrew Barton's agent and dealer. Nearly all of his work passed through my hands, and I have always had a great admiration for it. I have two of his paintings in my permanent gallery and three of them in my private house."
"You feel that you can say quite definitely that this picture was painted by Andrew Barton?"
"Yes. Quite definitely. I have not the shadow of a doubt."
At this point, Thorndyke sat down and Mr. Horace Black rose to cross-examine. At his request, the picture was passed across to him and he examined it critically for a while before beginning. At length, he opened fire on the witness.
"You have stated, as if it were a fact known to you, that this picture was painted by Andrew Barton. Are you not offering us a mere conjecture as a statement of fact?"
"It is not a conjecture," replied Montagu. "It is an expert opinion, and a very expert opinion considering my great experience of Andrew Barton's work. And I feel perfectly certain that it is a correct opinion."
"You are extremely confident. But, looking at this picture, it seems to me that there is nothing very highly distinctive about it. It seems to me to be a picture of the kind that is sometimes called photographic, such as could be produced by any skilful draughtsman."
"The people," said Montagu, "who call highly finished paintings photographic are people who don't know much about either painting or photography. There is no analogy between a work of imagination and a photograph."
"Still, I submit that a simple, realistic style like this could be easily imitated by any competent painter."
"That is not so," said Montagu. "A first-class professional copyist might be able to make a copy of this picture which would deceive any person but an expert. But imitation is quite a different matter from copying. To begin with, every artist has his own manner of thinking and working. Now the imitator would have to drop his own manner—which he couldn't do—and adopt, not only the technique but the mental and emotional character of the man he was imitating. And then, if he was trying to imitate a first-class artist like Andrew Barton, he would have to be a first-class artist, himself. But if he were, he wouldn't want to imitate anybody; and what's more, he couldn't do it, because he would have an unmistakable style of his own."
"And do you say that this simple, literal representation of an old woman making lace shows an unmistakable style which nobody could possibly imitate?"
"I do. I say that any genuine expert could pick out Andrew Barton's work at a glance. Of course, he was not like some of the present-day painters who play monkey tricks to give the art critics something to write about. It was genuine, honest painting done as well as he could do it; and nobody could do it better."
"We are straying away from the issue," said the counsel. "I am not contesting the quality of the work. My point is that you have sworn that this picture was painted by Andrew Barton, a fact which cannot possibly be within your knowledge since you admit that you never saw the picture before. Do you still swear that it was painted by Andrew Barton?"
"I said I felt certain, and I do feel certain; and I am ready to buy it for fifty pounds with the certainty of being able to sell it at a profit."
Here the counsel smilingly abandoned the contest and sat down. The picture was handed up to the judge, who inspected it with deep interest, and Mr. Montagu retired triumphantly from the box.
The next name called was less of a surprise to Andrew, who had been following closely the drift of the evidence; and the name of Martha Pendlewick associated itself naturally with the picture. The old lady stepped up into the box with a bland smile on her face and, having curtsied to the judge—who graciously acknowledged the salutation—turned and saluted the prisoner in the same deferential manner. "I want you, Mrs. Pendlewick," said Thorndyke, "to look at the prisoner and tell us whether you recognize him."
"Lord bless you, yes, sir," said Mrs. Pendlewick. "The poor young gentleman was lodging with me at the very time that the police arrested him. And a nicer and more considerate lodger no one could wish for."
As the old lady was speaking, the judge repeatedly glanced from her to the picture, which h
e was still holding, and back, apparently comparing the real with the painted figure; and meanwhile he listened attentively to the evidence. Then, at Thorndyke's request, the picture was handed down and presented to the witness, who nodded at it with a smile of friendly recognition. "Have you ever seen that picture before?" Thorndyke asked.
"To be sure I have," she replied with a surprised air. "Why 'tis a likeness of myself a-making bone lace in my own kitchen."
"Do you know who painted that picture?"
"Certainly I do. 'Twas the young gentleman, himself, Mr. Barton."
"Can you tell us when he painted it?"
"He took several days over it. I can't give you the exact date, but he finished it only a few days before the police made that unfortunate mistake."
"Can you say positively that you saw him paint the whole of it from beginning to end?"
"Yes. I saw him begin it on the white paper and draw it with a lead pencil. And then he put on the colours. It took him the best part of a week and he finished it, as I said, a few days before he was took away to prison."
Mrs. Pendlewick's evidence was listened to with intense interest by the Court and spectators alike. But its effect on Mr. Montagu was most remarkable. From his place among the "witnesses in waiting" he craned forward with bulging eyes to stare, first at Mrs. Pendlewick and then at the prisoner. Evidently, he was in a state of complete mental bewilderment. He had sworn that the picture could have been painted by no one but Andrew Barton. But clearly it had been painted since Andrew Barton's death; and it had been painted by the Roman-nosed gentleman in the dock. He could make nothing of it.
His bewilderment did not escape the notice of Thorndyke who, even while he was questioning the witnesses, kept a sharp eye, not only on the jury but also on the spectators. For long experience had taught him that, in practice, the final test of evidence is its effect on the non-expert listener. Now, Mr. Montagu was in a dilemma. The evidence of his eyesight told him that the picture had been painted by Andrew Barton. But it also told him that the man in the dock was not the Andrew Barton whom he had known. Yet there seemed no escape from Mrs. Pendlewick's evidence that the picture had been painted by the man in the dock. It was a puzzle to which he could find no solution.
Thorndyke then noted Mr. Montagu's state of mind and congratulated himself on having taken the precaution to put Montagu in the box before Mrs. Pendlewick; for, evidently, if he had gone into the box after her, his evidence would have been worth nothing. He would never have sworn to the authorship of the picture. The observation, therefore, of Montagu's apparent immunity to the evidence of the change of personality came as a very useful reminder that that evidence had still to be driven home to the jury, and further, that it must be driven home to them through the evidence of their own eyesight. Fortunately, the next witness gave him the opportunity.
That witness was a quiet, resolute-looking gentleman who gave the name of Martin Burwood and stated that he was an Inspector in the Criminal Investigation Department of the Metropolitan Police. His duties were connected with the keeping of Criminal Records at Scotland Yard and especially with the Finger-print Department. "When the prisoner was arrested," said Thorndyke, "were his finger-prints taken?"
"They were," replied the inspector.
"Were those finger-prints already known to you?"
"They were not. On receiving them from the prison, I examined them and I then searched the files to see whether we had any duplicates. I found that there were no duplicates in the files."
"What does that prove?"
"It proves that the prisoner has never previously been convicted of any offence."
"Have you in your records any relating to a man named Septimus Neville? And, if so, of what do those records consist?"
"We have the records of Septimus Neville in the files. They consist of descriptive and other particulars, a complete set of finger-prints and two photographs, one in profile and one full face."
"Have you compared the finger-prints of Septimus Neville with those of the prisoner?"
"I have. They are not the same finger-prints."
"Are you quite sure that they are not the same?"
"I am perfectly sure. There is not even any resemblance."
"Is it possible that Septimus Neville and the prisoner can be one and the same person?"
"It is quite impossible."
"Have you compared the record photographs of Septimus Neville with those of the prisoner?"
"I have."
"Do you find anything remarkable about them?"
"I do. The photographs show that the two men are extraordinarily alike. They are so much alike that it is hardly possible to distinguish one from the other. I produce the photographs of both men."
He did so, and they were passed up to the judge, who inspected them with amused surprise. They were then handed round to the jury who, in their turn, viewed them with undisguised astonishment. "You have shown us," said Thorndyke, when he had examined them and passed them on to the other counsel, "four photographs, two of each of these men. They appear exactly alike, but you say that they are the photographs of two different men. Do you swear that they cannot be four photographs of the same man?"
"I do. The finger-prints, which were taken at the same time as the photographs, prove conclusively that they must be two different men."
Thereupon Thorndyke sat down; and Mr. Black, with more valour than discretion, rose to cross-examine. But it was quite futile; for the evidence was unshakeable and the officer was a seasoned and experienced witness. The usual questions were asked as to the possible fallibility of finger-prints, and received the usual answers. As a wind-up, the counsel asked: "Do you swear that it is impossible for two men to have the same, or similar, finger-prints?"
"I swear that it is quite impossible," was the withering reply.
"And I suppose," the judge interposed dryly, "that we may assume it to be impossible for one man to have two different sets of finger-prints?"
The witness grinned and agreed that it was impossible; and the learned counsel, hiding his blushes under an appreciative smile, hurriedly sat down.
Then Thorndyke rose and, having announced that all the witnesses for the defence had now been heard, prepared to address the jury.
XVI. THORNDYKE'S ADDRESS TO THE JURY
"In view," Thorndyke began, "of the mass of evidence that has been produced and of its remarkable and convincing character, it seemed almost unnecessary that I should address you. But this is a trial on a capital charge and the prisoner's life is forfeit if it should be held to have been proved against him. I cannot, therefore, take any risks of a miscarriage. I shall, however, occupy as little time as possible. You are sworn to give a true verdict according to the evidence; and I shall confine myself to an examination of that evidence and to pointing out what has actually been proved. The prisoner is indicted in the name of Ronald Barton for the murder of Andrew Barton. The words of the indictment, therefore, contain four affirmative propositions:
"1. That a murder has been committed. 2. That the person who was murdered was Andrew Barton. 3. That he was murdered by Ronald Barton. 4. That the prisoner is Ronald Barton.
"Now, in order that a verdict of guilty should be returned against the prisoner, it is necessary that each and all of those propositions should be proved to be true. If any one of them should be proved to be untrue, the case against the prisoner would fall to the ground. I am not referring to any legal questions which might arise in respect of defects in the indictment; on which subject His Lordship will give you the necessary direction. I shall deal with the plain and simple issue, whether the prisoner is or is not guilty of the crime with which he is charged. To enable you to decide on that question, I shall ask you to examine critically those four propositions.
"First, has it been proved that a murder was, in fact, committed? So far as direct evidence is concerned, I can dismiss that question quite summarily; for no direct evidence was produced. You heard Sir Artemus Pope d
eclare definitely that, not only did he find no positive evidence that deceased met his death by homicide, but that he found nothing that tended to suggest or raise any suspicion of homicide. There is, therefore, no direct evidence that any murder was, in fact, committed; and I submit that on that alone, the prisoner is entitled to a verdict of Not Guilty.
"We now come to the indirect evidence; which consists in certain considerations of motive and conduct. The motives that are suggested for the alleged murder are, first, that Ronald Barton stood to gain five hundred pounds by the death of Andrew Barton and, second, that Andrew Barton had in his possession certain valuable property which Ronald coveted and subsequently stole, and which was found in the prisoner's possession when he was arrested. It is further suggested that the conduct of the prisoner was such as to lead to the belief that he had murdered the man whose body was found at Hunstone Gap.
"And now we see the importance of the other three propositions. For if the person whose body was found was not Andrew Barton, then no insurance was payable, and the suggested motive ceases to exist. Again, if the prisoner is not Ronald Barton, he is entitled to no benefit under Andrew's will; and again the motive disappears. Further, if the prisoner is proved to be Andrew Barton, the property found in his possession is his own lawful property, and the other motive disappears.
"Thus, you will see that the issue that you are trying is really the issue of personal identity. The questions which you have to decide are; first, who was the person whose body was found at the foot of the cliff at Hunstone Gap? and, second, who is the prisoner? I will take these questions in their order.
"First, who was the dead man? Now, we have the evidence of Mr. Cooper that two men were seen walking towards Hunstone Gap, and we may accept it as certain that the body which was found there was the body of one of these two men. For with that body was found the clothing of a man who corresponds exactly in appearance to one of them and who is known to have been in Crompton on that day and to have worn similar clothing.
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