Brief Tales From The Bench

by Henry Cecil

‘But you asked me to,’ said Mrs Long.

  I realised that Mrs Long required rather gentle handling. I asked her if she remembered reading about Mr Elgar being prosecuted.

  ‘I should say I did,’ she said. ‘You could have knocked me down. I didn’t believe it. I thought it must be somebody else. He’s such a nice man. I know he’d never do anything like that. I’d trust him with anything of mine. He’s a good man. You can see it in him, and I know a good man when I see one. You’re a good man, your honour,’ she added, ‘I’d trust you anywhere too. Not as much as Mr Elgar, of course, but near enough. I’ve known him longer, you see.’

  ‘D’you remember,’ I said, ‘going into a shop with Mr Elgar a short time before he was prosecuted?’

  ‘That’s what I’ve come to say,’ she said.

  ‘Very well, Mr Elgar,’ I said, ‘would you like to go on examining the witness. And try not to put the words into her mouth.’

  So Mr Elgar took up the examination.

  ‘You remember,’ he said, ‘coming into a shop with me, a stationer’s?’

  ‘Oh, very well,’ said Mrs Long. ‘As it happens, I remember what we were talking about. Of all the stupid things I said to you–’

  But I intervened.

  ‘We don’t want to hear the conversation, Mrs Long.’

  ‘Oh do, it would amuse you.’

  ‘Behave yourself please, Mrs Long.’

  ‘I might just as well not have come,’ said Mrs Long.

  ‘Mr Elgar,’ I said, ‘please ask your next question.’

  ‘Did I buy any pencils?’ he asked.

  ‘Yes, certainly you did.’

  ‘Look at these pencils please, Mrs Long.’

  I asked the usher to take them to the witness.

  ‘These are the pencils,’ said Mrs Long.

  ‘Those are the pencils you saw me buy?’ repeated Mr Elgar.

  ‘I wondered why you wanted two,’ said Mrs Long.

  ‘And those are the pencils?’ repeated Mr Elgar.

  ‘They are the pencils,’ said Mrs Long.

  ‘That is all I wish to ask, your honour,’ said Mr Elgar.

  I invited Mr Benton to cross-examine.

  ‘Mrs Long,’ was his first question, ‘is there any mark on the pencils?’

  ‘Mark? How d’you mean?’

  ‘Is there any mark on the pencils?’

  ‘You said that before.’

  ‘I know I did, but you didn’t answer.’

  ‘I certainly did. I said what d’you mean by a mark?’

  ‘By a mark I mean a mark.’

  ‘What kind of a mark?’ asked Mrs Long.

  ‘Any kind of mark.’

  ‘Well, I don’t know what you’re talking about, I’m sure.’

  I intervened.

  ‘All Mr Benton wants to know,’ I said, ‘is if you can see any mark on either of those pencils.’

  ‘Perhaps you can, your honour,’ said Mrs Long.

  ‘Can you?’ I asked.

  ‘Nothing special.’

  ‘Then,’ said Mr Benton, ‘how can you say those are the pencils?’

  ‘Because I’m on oath,’ said Mrs Long. ‘I’ve sworn to tell the truth, and those are the pencils.’

  ‘Are those the two pencils which you saw Mr Elgar buy?’ asked Mr Benton.

  ‘Now you’ve got it,’ said Mrs Long.

  ‘The exact same pencils?’ persisted Mr Benton.

  ‘Now you’re not starting all over again,’ said Mrs Long.

  ‘Are they the exact same pencils?’ said Mr Benton.

  ‘Isn’t it in the “Hunting of the Snark”,’ said Mrs Long, ‘that someone says, “What I tell you three times is true”?’

  Again I intervened.

  ‘Mrs Long,’ I said, ‘I must kindly ask you once more to behave yourself.’

  ‘You said that before, your honour,’ said Mrs Long. ‘I thought I was. I’m wearing a hat and a decent length skirt, what should I have done?’

  ‘You should answer the questions properly.’

  ‘I thought I had.’

  ‘The “Hunting of the Snark”,’ I said, ‘has got nothing to do with the questions Mr Benton is asking you.’

  ‘You know it, then, your honour?’

  ‘Mr Benton, would you ask the question again, please,’ I said.

  ‘Are those two pencils the exact same pencils which you saw Mr Elgar buy on the occasion to which you have referred?’ asked Mr Benton.

  ‘If I answer you this time,’ said Mrs Long, ‘will you promise not to ask again?’

  ‘You mustn’t talk to counsel like that, Mrs Long,’ I said. ‘It’s for me to decide whether counsel asks the question too often, and I’ll protect you if he does.’

  ‘You’ll protect me, your honour?’ said Mrs Long.

  ‘Yes.’

  ‘That’ll be something to remember,’ she said.

  ‘Well, Mrs Long, are they the pencils?’ asked Mr Benton.

  ‘They are. They are, they are, they are. Is that enough times?’

  ‘Those pencils, madam,’ said Mr Benton, ‘are made in hundreds of thousands. How can you say that the two pencils in front of you are the very pencils which Mr Elgar bought, and not two like them.’

  ‘That’s what I mean,’ said Mrs Long.

  ‘You mean the pencils in front of you are like the ones you saw Mr Elgar buy?’

  ‘Oh dear, oh dear, oh dear,’ said Mrs Long, ‘haven’t I just told you so?’

  ‘What you said several times, madam,’ said Mr Benton, ‘is that these are the actual pencils, not just like the actual pencils, but the actual pencils.’

  ‘How can I tell one from another?’ said Mrs Long, ‘they’re all the same.’

  ‘So, Mrs Long,’ said Mr Benton, ‘you saw Mr Elgar buy two pencils. Did you by any chance see what he did with them?’

  ‘What he did with them?’ queried Mrs Long.

  ‘What he did with them,’ repeated Mr Benton.

  ‘Yes,’ said Mrs Long, ‘I heard you the first time. But what d’you expect him to do with them? I know some people eat pencils, but you don’t expect him to start doing that as soon as he’d bought them?’

  ‘Was there a rubber on the end?’ I asked.

  ‘I believe there was,’ said Mrs Long, ‘but you could take the whole thing off if you wanted to have a bite.’

  ‘Did you see whether the pencils were put in a bag before he took them away?’ asked Mr Benton.

  ‘It would have been a waste of time if they were.’

  ‘But were they?’

  ‘You must ask him that. After all, he was buying them and he might have wanted a bag too.’

  ‘Had he got an overcoat?’

  ‘Really,’ said Mrs Long, ‘I don’t own the man. How do I know what he’d got? You’ll ask me the colour of his shirt next. He’s an ordinary man dressed in the ordinary way, and he bought two ordinary pencils.’

  ‘And had he got two ordinary pockets in his ordinary overcoat?’ asked Mr Benton.

  ‘I can’t keep this up,’ said Mrs Long, ‘but I should imagine so.’

  ‘But what he did with the pencils you can’t say?’

  ‘Can’t I?’

  ‘Well, can you?’

  ‘Can’t I what?’

  ‘I said “can you”.’

  ‘And I said “Can’t I?”’

  ‘Mrs Long,’ I said, ‘I don’t know whether you are trying to be funny or have some kind of game with counsel, but I must warn you that I can’t allow that sort of thing in this court.’

  ‘I wouldn’t allow it myself in your place,’ said Mrs Long. ‘What’s the good of being up there if you can’t make people behave themselves?’

  ‘I take the hint, Mrs Long, and if this occurs again, I shall fine you for contempt of court.’

  ‘I shan’t come here again in a hurry,’ said Mrs Long.

  ‘Mrs Long,’ I said, ‘if you go on trying to be funny, first of all I shall fine you, and then I shall send yo
u to prison.’

  ‘I knew I was wrong to come,’ said Mrs Long.

  ‘Go on, please, Mr Benton,’ I said.

  ‘Madam,’ said Mr Benton, ‘did you see what Mr Elgar did with the two pencils which you saw him buy?’

  ‘He took them away with him.’

  ‘In his hand or in his pocket, or how?’

  ‘I’ve already told you, that’s for him to say,’ said Mrs Long.

  ‘Very well then,’ said Mr Benton. ‘Now, Mrs Long, would you tell me something else. What day of the week was this on?’

  ‘I don’t keep a diary,’ said Mrs Long, ‘and if I had, I shouldn’t have written in it. Even Pepys wouldn’t have written “saw Mr Elgar buy two pencils, mighty strange”.’

  ‘When were you aware that Mr Elgar had been arrested?’

  ‘When I saw it in the papers.’

  ‘Are you able to swear positively that the day when you saw him buy the two pencils was a few days before he was arrested?’

  ‘That is what I’m here to swear.’

  ‘That may be, madam,’ said Mr Benton, ‘but how d’you know the day?’

  ‘Well, today’s Thursday, isn’t it?’

  ‘Yes, it is,’

  ‘Well, I got that right, why shouldn’t I have got the other right?’

  ‘Well, what day of the week was it, madam?’ said Mr Benton. ‘Was it Thursday, or Monday, or what other day?’

  ‘It was a few days before he was arrested.’

  ‘How d’you know?’

  ‘Because he told me so.’

  ‘When did he tell you so?’

  ‘Good gracious me, is this going on much longer?’

  ‘When did he tell you?’

  ‘I really couldn’t say.’

  ‘Was it on the day when you read about the case?’

  ‘No, I didn’t see him that day. Anyway he was locked up, wasn’t he?’

  ‘He was on bail as a matter of fact, madam,’ said Mr Benton.

  ‘You can’t tell by looking at a man whether he’s on bail or not,’ said Mrs Long.

  ‘Was it today that he told you?’

  ‘No.’

  ‘Was it yesterday?’

  ‘I didn’t see him yesterday.’

  ‘He could have told you on the telephone.’

  ‘I haven’t got a telephone.’

  ‘So it was on some day between the day of his arrest, and yesterday?’

  ‘That’s what you say.’

  ‘There isn’t any other possibility, is there?’ said Mr Benton.

  ‘Well, if you’re satisfied, so am I,’ said Mrs Long. ‘Can I go home now?’

  ‘I’m afraid,’ I said, ‘you’ll have to stay here until the end of the case.’

  ‘When will that be?’

  ‘I don’t know, but you’re prolonging the trial very considerably.’

  ‘I’m not used to courts,’ said Mrs Long.

  ‘That is all I wish to ask,’ said Mr Benton.

  ‘Mrs Long,’ said Mr Elgar, ‘you’re quite sure you saw me leave that shop with the two pencils in my pocket?’

  ‘That’s what you wanted me to say,’ said Mrs Long, ‘isn’t it?’

  ‘Yes.’

  ‘Well, I’ve said it, haven’t I?’

  ‘Thank you, Mrs Long,’ said Mr Elgar, ‘I’ve no more witnesses, your honour.’

  The defendants then called their evidence. First they called the shop manager, Mr Robinson. He hadn’t seen anything happen himself, but as the result of what he was told, he counted up the pencils and the memo pads, and he found that there were five pencils missing, and four memo pads. And he said that the pads and pencils were exactly the same as those found in Mr Elgar’s coat pocket. He was then questioned by Mr Elgar.

  ‘Mr Robinson,’ said Mr Elgar, ‘what you found on me only accounted for some of the missing articles?’

  ‘That is so,’ said Mr Robinson.

  ‘Did I have the chance of disposing of any memo pads or pencils before I was detained?’

  ‘I don’t think you had.’

  ‘So,’ said Mr Elgar, ‘if more pads and pencils were missing than were found on me, someone else must have taken them.’

  ‘That is so,’ said Mr Robinson, ‘we’ve been having rather a lot of thefts recently.’

  ‘So,’ I said, ‘I suppose you instructed your store detective and your assistants to keep a special look out?’

  ‘That is so, your honour.’

  ‘And, if one or more of your regular customers was a thief, he might possibly notice the extra vigilance?’

  ‘That’s possible, your honour.’

  ‘Well, isn’t it possible,’ I asked, ‘that, if a thief had taken several pads and several pencils and suddenly realised that he might be being watched, he’d want to unload some or all of them before he was stopped?’

  ‘That is possible,’ said Mr Robinson.

  ‘Well, one way of unloading was to put them into somebody else’s pocket, wasn’t it?’

  ‘That could be done,’ said Mr Robinson.

  ‘Was the store fairly crowded on the day in question?’

  ‘Yes, fairly crowded.’

  ‘Well, Mr Robinson,’ I said, ‘whatever the truth about Mr Elgar may be, there was a thief other than him around, wasn’t there?’

  ‘It looks like it,’ said Mr Robinson.

  ‘Well, if the thief took fright, he may have off-loaded two memo pads into Mr Elgar’s coat.’

  ‘It could be done,’ said Mr Robinson.

  ‘And who,’ I asked, ‘would be more skilful at doing that than a persistent thief?’

  ‘Oh, they’re not pickpockets, your honour,’ said Mr Robinson. ‘They’re shoplifters, which is rather different.’

  ‘There’s nothing to prevent a man carrying on both professions, is there?’ I asked.

  ‘I suppose not,’ said Mr Robinson.

  ‘When you saw Mr Elgar after he’d been detained,’ I asked, ‘he told you that the pencils were his, and that he’d bought them at another shop, and that he couldn’t account for the memo pads?’

  ‘That’s true.’

  ‘Well, if someone else had put the pads into his pocket, he wouldn’t have been able to account for them, would he?’

  ‘No, he wouldn’t.’

  No further questions were asked of the manager, and Mr Benton for the defendants agreed that what Mr Elgar had said about the store detective was correct.

  I was then addressed both by Mr Benton and by Mr Elgar and finally I gave judgment. Among other things I said this: ‘More memo pads were missing than were found on Mr Elgar. So presumably another person had taken some. Which is the more likely, I ask myself, that a man of unblemished reputation should steal a couple of pads, or that a frightened thief might slip them into Mr Elgar’s overcoat pocket? It’s to be noted that from the very start Mr Elgar said that he couldn’t account for the pads. Whatever the truth of the matter, it is not in my opinion more probable that Mr Elgar stole the pads. So on that aspect of the matter the defendants have not proved their case. As to the two pencils, Mr Elgar says that he bought them elsewhere. There’s some corroboration of that, though not very much, as I can’t place a great deal of reliance on Mrs Long’s evidence. But again, which is more probable? That Mr Elgar had stolen them or bought them a few days previously? Certainly not that he had stolen them. But Mr Benton says that, even if the probability was not proved in the case of each separate item, I must take the two together. Look at the coincidences, he says. Well, it is a coincidence, but coincidences do happen. And in my view in this case it’s a perfectly credible coincidence, and quite insufficient to prove the defendants’ case. In the result, as it is for the defendants to prove that the plaintiff was guilty to justify their dismissing him, and not for him to prove his innocence, I find in Mr Elgar’s favour; and hold that the defendants broke their contract when they dismissed him without notice.’

  I accordingly gave judgment for the plaintiff for £50 damages and cos
ts.

  So in spite of the findings of two criminal courts that Mr Elgar’s guilt had been proved beyond all reasonable doubt, I found that it had not even been proved as a probability. Whether it’s desirable that a case should be re-tried in this way as a matter of course, I very much doubt. But there will always be the occasional case where it might be the only way to prevent injustice. We can’t always do justice, we can only do our best.

  Oddly enough there was a further coincidence. After the case was over, I went home by train. And after I’d settled myself down I saw Mr Benton and Mr Elgar come in. They couldn’t see me, but I could hear them. Apparently they’d got on very well together during the case, and were on the best of terms. And this is what I heard: ‘I’m terribly interested in truth,’ said Mr Benton. ‘Now that it’s all over and you’ve won, it can’t hurt you to tell me the truth. I’ll keep it to myself entirely. I promise. Do tell me, did you take the things?’

  ‘What a ridiculous question,’ said Mr Elgar. ‘What should I want to take a couple of memo pads and pencils for?’

  But I feel pretty confident of one thing. Mr Elgar won’t do it again.

  CHAPTER SIX

  The Hidden Money

  The origin of this story, as I subsequently learned, was when Amy and Robert Hull got married. It was a perfect wedding. The sun shone, all their relations and friends were there, and nothing could have been happier for the young couple. As they drove away towards their honeymoon, they considered how lucky they were.

  ‘How sweet everybody’s been to us,’ said Amy, ‘how kind.’

  ‘How right you are,’ said Robert. ‘And that reminds me. What d’you think my uncle has given me? Five hundred premium bonds!’

  ‘Five hundred!’ said Amy. ‘Oh, he is good.’

  ‘And each one of those,’ said Robert, ‘might become five thousand pounds, that’s two and a half million. We’re rich.’

  ‘We’re rich anyway,’ said Amy. ‘We have each other.’

  But although the marriage started so auspiciously, it didn’t go on like that for very long. Within six months Amy had gone to see a solicitor. He asked her what she wanted.

  ‘I want a divorce,’ said Amy.

  ‘Dear, dear,’ said the solicitor, ‘you’re very young.’

  ‘I’m old enough to have the vote,’ said Amy, ‘so I’m old enough to have a divorce. Anyway, I’m thirty.’

  ‘Are you really? And your husband?’