CHAPTER XVIII
The second day of the trial began promptly when Mr. Justice Hodson tookhis seat. Mr. Holymead's opening statement to the jury was brief. Hereminded them that the life of a fellow creature rested on their verdict.If there was any doubt in their minds whether the prisoner had fired theshot which killed Sir Horace Fewbanks the prisoner was entitled to averdict of "not guilty." It was obligatory on the prosecution to proveguilt beyond all reasonable doubt.
He submitted that the prosecution had not established their case. Afterhearing the case for the prosecution the jury must have grave doubts asto the guilt of the prisoner, and it was his duty as Counsel for theprisoner to put before the jury facts which would not only increase theirdoubts but bring them to the positive conclusion that the prisoner wasnot guilty. He was not going to attempt to deny that the prisoner went toRiversbrook on the night of the murder. He went there to commit aburglary. But so far from Hill being terrorised into complicity in thatcrime it was he who had first suggested it to Birchill and had arrangedit. Material evidence on that point would be submitted to the jury.
Hill was a man who was incapable of gratitude. His disposition was tobite the hand that fed him. After being well treated by Sir HoraceFewbanks he had made up his mind to rob him as he had robbed his formermaster Lord Melhurst. He knew that Sir Horace had quarrelled with thisgirl Fanning because of her association with Birchill, and he went toBirchill and put before him a proposal to rob Riversbrook. Birchillconsented to the plan, and when on the night of the 18th August hebroke into the house he found the murdered body of Sir Horace in thelibrary. That was the full extent of the prisoner's connection withthe crime. To the superficial and suspicious mind it might seem animprobable story, but to an earnest mind it was a story that carriedconviction because of its simple straightforwardness--its crudity, ifthe jury liked to call it that. It lacked the subtlety and the finishof a concocted story. The murder took place before Birchill reachedRiversbrook on his burglarious errand.
"It is my place," added Mr. Holymead, in concluding his address, "toconvince you that my client is not guilty, or, in other words, toconvince you that the murder was committed before he reached the house.It is only with the greatest reluctance that I take upon myself theresponsibility of pointing an accusing finger at another man. In crimesof this kind you cannot expect to get anything but circumstantialevidence. But there are degrees of circumstantial evidence, and my dutyto my client lays upon me the obligation of pointing out to you thatthere is one person against whom the existing circumstantial evidence isstronger than it is against my client."
Crewe, who had secured his former place in the gallery of the court,looked down on the speaker. He had carefully followed every word ofHolymead's address, but the concluding portion almost electrified him. Heflattered himself that he was the only person in court who understood thefull significance of the sonorous sentences with which the famous K.C.concluded his address to the jury.
As his eyes wandered over the body of the court below, Crewe saw thatMrs. Holymead and Mademoiselle Chiron were sitting in one of the backseats, but that they were not accompanied by Miss Fewbanks. It wasevident to him by the way in which Mrs. Holymead followed the proceedingsthat her interest in the case was something far deeper than wifelyinterest in her husband's connection with it as counsel for the defence.Leaning forward in her seat, with her hands clasped in her lap, shelistened eagerly to every word. During the day his gaze went back to herat intervals, and on several occasions he became aware that she had beenwatching him while he watched her husband.
The first witness for the defence was Doris Fanning. The drift of herevidence was to exonerate the prisoner at the expense of Hill. Shedeclared that she had not gone to Riversbrook to see Hill after the finalquarrel with Sir Horace. Hill had come to her flat in Westminster of hisown accord and had asked for Birchill. She went out of the room whilethey discussed their business, but after Hill had gone Birchill told herthat Hill had put up a job for him at Riversbrook. Birchill showed herthe plan of Riversbrook that Hill had made, and asked her if it wascorrect as far as she knew. Yes, she was sure she would know the planagain if she saw it.
The judge's Associate handed it to Mr. Holymead, who passed it tothe witness.
"Is this it?" he asked.
"Yes," she replied emphatically, almost without inspecting it.
"I want you to look at it closely," said Counsel. "When Birchill showedyou the plan immediately after Hill's departure, what impression did youget regarding it?"
She looked at him blankly.
"I don't understand you," she said.
"You can tell the difference between ink that has been newly used and inkthat has been on the paper some days. Was the ink fresh?"
"No, it was old ink," she said.
"How do you know that?"
"Because ink doesn't go black till a long while after it is written. Atleast, the letters _I_ write don't." She shot a veiled coquettish glanceat the big K.C. from under her long eyelashes.
The K.C. returned the glance with a genial smile.
"What do you write your letters on, Miss Fanning?"
She almost giggled at the question.
"I use a writing tablet," she replied.
"Ruled or unruled?"
"Ruled. I couldn't write straight if there weren't lines." Shesmiled again.
"And what colour do you affect--grey, rose-pink or white paper?"
"Always white."
"Is that all the paper you have at your flat for writing purposes?"
"Yes."
"Then what did Birchill write on when he wanted to write a letter?"
"He used mine."
"Are you sure of that?"
"Yes. When he wanted to write a letter he used to ask me for my tabletand an envelope. And generally he used to borrow a stamp as well." Shepouted slightly, with another coquettish glance.
"Look at that plan again," said the K.C. "Have you ever had paper like itat your flat?"
She shook her head.
"Never."
"Have you ever seen paper of that kind in Birchill's possession before heshowed you the plan?"
"Never."
"When he showed you the plan had the paper been folded?"
"Yes."
The K.C. took the witness, now very much at her ease, to the night of themurder. She denied strenuously that Hill tried to dissuade Birchill fromcarrying out the burglary because Sir Horace Fewbanks had returnedunexpectedly from Scotland. It was Birchill who suggested postponing theburglary until Sir Horace left, but Hill urged that the original planshould be adhered to. He declared that Sir Horace would remain at home atleast a fortnight, and perhaps longer. His master was a sound sleeper, hesaid, and if Birchill waited until he went to bed there would be nodanger of awakening him. She contradicted many details of Hill's evidenceas to what took place when the prisoner returned from breaking intoRiversbrook. It was untrue, she said, that there was a spot of blood onBirchill's face or that his hands were smeared with blood. He was alittle bit excited when he returned, but after one glass of whisky hespoke quite calmly of what had happened.
The next witness was a representative of the firm of Holmes and Jackson,papermakers, who was handed the plan of Riversbrook which Hill had drawn.He stated that the paper on which the plan was drawn was manufactured byhis firm, and supplied to His Majesty's Stationery Office. He identifiedit by the quality of the paper and the watermark. In reply to Mr. Waltersthe witness was sure that the paper he held in his hand had beenmanufactured by his firm for the Government. It was impossible for him tobe mistaken. Other firms might manufacture paper of a somewhat similarquality and tint, but it would not be exactly similar. Besides, heidentified it by his firm's watermark, and he held the plan up to thelight and pointed it out to the court.
Counsel for the defence called two more witnesses on this point--one toprove that supplies of the paper on which the plan was drawn were issuedto legal departments of the Government, and an elderly man na
med Cobb,Sir Horace Fewbanks's former tipstaff, who stated that he took some ofthe paper in question to Riversbrook on Sir Horace's instructions. Andthen, to the astonishment of junior members of the bar who were in courtwatching his conduct of the case in order to see if they could pick up afew hints, he intimated that his case was closed. It seemed to them thatthe great K.C. had put up a very flimsy case for the defence, and that inspite of the fact that the prosecutor's case rested mainly on theevidence of a tainted witness Holymead would be very hard put to it toget his man off.
"Isn't my learned friend going to call the prisoner?" suggested Mr.Walters, with the cunning design of giving the jury something to think ofwhen they were listening to his learned friend's address.
"It's scarcely necessary," said Mr. Holymead, who saw the trap, andreplied in a tone which indicated that the matter was not worth amoment's consideration.
He began his address to the jury by emphasising the fact that a fellowcreature's life depended on the result of their deliberations. The dutythat rested upon them of saying whether the prosecution had establishedbeyond all reasonable doubt that the prisoner shot Sir Horace Fewbankswas a solemn and impressive one. He asked them to consider the casecarefully in all its bearings. He could not claim for his client thathe was a man of spotless reputation. The prisoner belonged to a classwho earned their living by warring against society. But that fact didnot make him a murderer. On what did the case for the prosecution rest?On the evidence of Hill and three other witnesses who, on the night ofthe murder, had seen a man somewhat resembling the prisoner in thevicinity of Riversbrook, or making towards the vicinity of that house.But so far from wishing to emphasise the weakness of identification headmitted that the prisoner went to Riversbrook with the intention ofcommitting a burglary.
"We admit that he went there the night Sir Horace Fewbanks returned fromScotland," he continued. "Counsel for the prosecution will make the mostof those admissions in the course of his address to you, but the point towhich I wish to direct your attention is that we make this damagingadmission so that you may decide between the prisoner and the man wholed him into a trap by instigating the burglary. Now we come to theevidence of Hill. I know you will not convict a man of murder on theunsupported evidence of a fellow criminal. But I want to point out to youthat even if Hill's evidence were true in every detail, even if Hill hadnot swerved one iota from the truth, there is nothing in his evidence tolead to the positive conclusion that the prisoner murdered Hill's master,Sir Horace Fewbanks. What does Hill's evidence against the prisoneramount to? Let us accept it for the moment as absolutely true. Later on Iwill show you plainly that the man is a liar, that he is a cunningscoundrel, and that his evidence is utterly unreliable. But accepting forthe moment his evidence as true the case against the prisoner amounts tothis: by threats of exposure Birchill compelled Hill to consent toRiversbrook being robbed while the owner was in Scotland.
"Hill's complicity, according to his own story, extended only tosupplying a plan of the house and giving Birchill some information as towhere various articles of value would be found. On the 18th of AugustHill went to Riversbrook to see that everything was in order for theburglary that night. While he was there his master returned unexpectedly.Hill then went to the flat in Westminster and told Birchill that SirHorace had returned. His own story is that he tried to get Birchill toabandon the idea of the burglary, but that Birchill, who had beendrinking, swore that he would carry out the plan, and that if he cameacross Sir Horace he would shoot him. What grudge had Birchill againstSir Horace Fewbanks? The fact that Sir Horace had discarded the womanFanning because of her association with Birchill. Gentlemen, does a mancommit a murder for a thing of that kind?
"Let us test the credibility of the man who has tried to swear away thelife of the prisoner. You saw him in the witness-box, and I have no doubtformed your own conclusions as to the type of man he is. Did he strikeyou as a man who would stand by the truth above all things, or a man whowould lie persistently in order to save his own skin? That the man cannotbe believed even when on his oath has been publicly demonstrated in thecourts of the land. The story he told the court yesterday in thewitness-box of his movements on the day of the murder is quite differentto the story he told on his oath at the inquest on the body of Sir HoraceFewbanks. Let me read to you the evidence he gave at the inquest."
Mr. Finnis handed to his leader a copy of Hill's evidence at the inquest,and Mr. Holymead read it out to the jury. He then read out a shorthandwriter's account of Hill's evidence on the previous day.
"Which of these accounts are we to believe?" he said, turning to thejury. "The latter one, the prosecution says. But why, I ask? Because ittallies with the statement extorted from Hill by the police under thethreat of charging him with the murder. Does that make it more credible?Is a man like Hill, who is placed in that position, likely to tell thetruth, the whole truth, and nothing but the truth? It is an insult to thejury as men of intelligence to ask you to believe Hill's evidence. I donot ask you to believe the story he told at the inquest in preference tothe story he told here in the witness-box yesterday. I ask you to regardboth stories as the evidence of a man who is too deeply implicated inthis crime to be able to speak the truth.
"I will prove to you, gentlemen of the jury, that the man is a criminalby instinct and a liar by necessity--the necessity of saving his ownskin. He robbed his former master, Lord Melhurst, and he planned to robhis late master, Sir Horace Fewbanks. But knowing that his former crimewould be brought against him when the police came to investigate arobbery at Riversbrook he was too cunning to rob Riversbrook himself. Helooked about him for an accomplice and he selected Birchill. You heardhim say in the witness-box that he drew Birchill a plan ofRiversbrook--the plan I now hold in my hand. I will ask you to inspectthe plan closely. Hill told us that Birchill terrorised him into drawingthis plan by threats of exposure. Exposure of what? His master, SirHorace Fewbanks, knew he had been in gaol, so what had he to fear fromexposure? His proper course, if he were an honest man, would have been totell his master that Birchill was planning to rob the house and hadendeavoured to draw him into the crime. But he did nothing of the kind,for the simple reason that the plan to rob Riversbrook was his own, andnot Birchill's.
"Now, gentlemen, you have all seen the plan which this tainted witnessdeclares was drawn by him because Birchill terrorised him and stood overhim while he drew it. Is there anything in that plan to suggest that itwas drawn by a man in a state of nervous terror? Why, the lines are asfirmly drawn as if they had been made by an architect working at hisleisure in his office. Was this plan drawn by a man in a state of nervousterror with his tormentor standing threateningly over him, or was itdrawn up by a man working at leisure, free not only from terror but frominterruption? The answer to that question is supplied in the evidencegiven by three witnesses as to the paper used. Hill says the plan wasdrawn at the flat. Two other witnesses swore that it was paper suppliedexclusively for Government Departments, and another witness swore that hehad taken such paper to Riversbrook for the use of Sir Horace Fewbanks,who, like every one of His Majesty's judges, found it necessary to dosome of his judicial work at home. What is the inevitable inference? Iask you if you can have any doubt, after looking at that plan and afterhearing the evidence given to-day about the paper, that the proposal torob Riversbrook was Hill's own proposal, that Hill drew a plan of thehouse on paper he abstracted from his master's desk--paper which thisconfidential servant was apparently in the habit of using for privatepurposes--and that he gave it to Birchill when he asked Birchill to joinhim in the crime?
"When one of the main features of Hill's story is proved to be false, howcan you believe any of the rest? In the light in which we now see him,with his cunning exposed, what significance is to be attached to hisstatement that Birchill in his presence threatened to shoot Sir HoraceFewbanks if the master of Riversbrook interfered with him? Such a threatwas not made, but why should Hill say it was made? For the same reasonthat he lied about the plan--to s
ave his own skin. I submit to you,gentlemen, that when Hill went to see Birchill at the Westminster flat onthe night arranged for the burglary Sir Horace Fewbanks wasdead--murdered--and that Hill knew he was murdered. His own story is thathe tried to persuade Birchill to abandon the proposed burglary, but,according to the witness Fanning, he did all in his power to induceBirchill to carry out the original plan when he saw that Birchill wasdisposed to postpone the burglary in view of the return of the master ofRiversbrook. Why did he want Birchill to carry out the burglary? Becausehe knew that his master's murdered body was lying in the house, and hewanted to be in the position to produce evidence against Birchill as themurderer if he found himself in a tight corner as the result of thesubsequent investigations of the police. Remember that the body of thevictim was fully dressed when it was discovered by the police, and thatnone of the electric lights were burning. Does not that proveconclusively that the murder was not committed by Birchill, that SirHorace Fewbanks was dead when Birchill broke into the house?
"Birchill, an experienced criminal, would not break into the house whilethere was anybody moving about. He would wait until the house was indarkness and the inmates asleep. To do otherwise would increaseenormously the risks of capture. But the fact that the police found thebody of the murdered man fully dressed shows that Sir Horace was murderedbefore he went to bed--before Birchill broke into the house. It showsconclusively that the murder was committed before dusk. Your onlyalternatives to that conclusion are that the murdered man went to bedwith his clothes on, or that the murderer broke into the house before SirHorace had gone to bed and after killing Sir Horace went coolly round thehouse turning out the lights instead of fleeing in terror at his deedwithout even waiting to collect any booty. I am sure that as reasonablemen you will reject both these alternatives as absurd. No evidence hasbeen produced to show that anything has been stolen from the place. Itwas evidently the theory of the prosecution that the prisoner, aftershooting Sir Horace, had fled. The evidence of Hill was that he arrivedat Fanning's flat in a state of great excitement. His excitement would beconsistent with his story of having discovered the body of a murderedman, but not consistent with the conduct of a cold-blooded calculatingmurderer who had broken into the house before Sir Horace had undressedfor bed, had shot him, and had then gone round the house turning out thelights without having any apparent object in doing so.
"Gentlemen, I think you will admit that the crime must have beencommitted before dusk; before any lights were turned on. I do not ask youto say that Hill is guilty. The responsibility of saying what man otherthan the prisoner shot Sir Horace Fewbanks does not rest with you. But Ido urge you to ask yourselves whether, as between Hill and the prisoner,the probability of guilt is not on the side of this witness who lied tothe coroner's court about his movements on the night of the murder, andwho lied to this court about the plan for the robbery of Riversbrook. Ihave shown you that Hill was the master mind in planning the burglary,and, that being so, would not Birchill have consented to the postponementof the burglary if Hill had urged him to do so when he visited the flatafter the unexpected return of the master of Riversbrook? Is not theevidence of the witness Fanning, that Hill urged Birchill to carry outthe burglary after Sir Horace had gone to sleep, more credible thanHill's statement that he endeavoured to induce Birchill to abandon theproposed crime? Knowing what you know of Hill's past as a man who willrob his master, knowing that he attempted to deceive you with regard tothis plan of Riversbrook in order that you might play your part in hiscunning scheme, I urge you to ask yourselves whether it is not moreprobable that Hill fired the shot which killed Sir Horace Fewbanks thanthat the prisoner did so. Is it not extremely probable that theunexpected return of Sir Horace upset Hill, who was giving a final lookround the house before the burglary took place? That, instead ofanswering his master with the suave obsequious humility of thewell-trained servant, he revealed the baffled ferocity of a criminalwhose carefully arranged plan seemed to have miscarried; that his masterangrily rebuked him, and Hill, losing control of himself, sprang at SirHorace, and the struggle ended with Hill drawing a revolver and shootinghis master?
"The rest of the story from that point can be constructed withoutdifficulty. The murderer's first thought was to divert suspicion fromhimself, and the best way to do that was to divert suspicion elsewhere.He locked up the house and went to see Birchill. He urged Birchill tobreak into Riversbrook, in which the dead body of the murdered man lay.It is true that he need not have told Birchill that Sir Horace hadreturned unexpectedly; but his object in doing so was to make Birchillsearch about the house until he inadvertently stumbled across the deadbody. Had Birchill been under the impression that he had broken into anentirely empty house he would have collected the valuables and might nothave entered the library in which the dead body lay. It was necessaryfor Hill's purpose that Birchill should come across the corpse; then hewould be vitally interested in diverting suspicion from himself(Birchill) and that is why he cunningly revealed to Birchill that SirHorace had returned. I put it to the jury that such is a more probableexplanation of how Sir Horace met his death than that he was shot downby Birchill. I ask you again to remember that the body was fully dressedwhen it was found by the police. I put it to you that in this matter theprisoner walked into a trap prepared by his more cunning fellowcriminal. And I urge you, with all the earnestness it is possible for aman to use when the life of a fellow creature is at stake, not to be ledinto a trap--not to play the part this cunning criminal Hill hasdesigned for you--in the sacrifice of the life of an innocent man forthe purpose of saving himself from his just deserts. Looking at thewhole case--as you will not fail to do--with the breadth of view ofexperienced men of the world, with some knowledge of the workings ofhuman nature, with a natural horror of the depths of cunning of whichsome natures are capable, with a deep sense of the solemn responsibilityfor a human life upon you, I confidently appeal to you to say that theprisoner was not the man who shot Sir Horace Fewbanks, and to bring in averdict of 'not guilty.'"
A short discussion arose between the bench and bar on the question ofadjourning the court or continuing the case in the hope of finishing itin a few hours. Sir Henry Hodson wanted to finish the case that night,but Counsel for the prosecution intimated that his address to the jurywould take nearly two hours. As it was then nearly five o'clock, and HisHonour had to sum up before the jury could retire, it was hardly to behoped that the case could be finished that night, as the jury might besome time in arriving at a verdict. His Honour decided to adjourn thecourt and finish the case next day.
The Hampstead Mystery Page 18
