by James Fox
The bruises on Erroll’s forehead suggested that he had hit his head on the steering wheel as he ducked when he first saw the gun. The second shot killed him instantly. At some point, said Vint, the body must have fallen sideways—there were bloodstains exactly where the wounded side of Erroll’s head would have touched the passenger seat. Vint also noticed that there was blood on Erroll’s right trouser leg, below the knee, which suggested that Erroll had been upright at the wheel long enough for the blood to drip downwards—but nothing was made of this, although it might well have had some bearing on how the body arrived in that position in the footwell of the car, the knees tucked under the body, and the hands clasped in front of the head. There were smears of blood on both hands, particularly on the left one.
After many experiments, Poppy and Vint concluded that the body must have been manipulated into the footwell to get it free of the wheel and the pedals, that it would never have fallen that way naturally: the steering wheel itself would have prevented it from falling into the footwell on the car’s impact with the ditch.
Poppy believed that Broughton had moved the body from the driving seat in order to be able to steer the car off the road. The ignition had clearly been switched off by hand; the lights were still on but because the knob was missing from the light switch it required a pair of pliers to turn them off—and a pair was found in the car.
To shoot from the running board while the car was moving would have required some agility, said Vint, but to shoot from the seat beside Erroll would have been relatively easy, if the murderer turned his back to his own door. He didn’t suggest that the best position—if the car was stationary—was with the door open and the murderer stepping out backwards. Evidence was also given that the armslings in the car—which Mrs. Carberry, who always used them, said had been definitely in place the day before the murder—had not been wrenched off, but unscrewed and removed.
Harragin then tried to show that Broughton’s behaviour both before and after the murder reeked of suspicion, especially his second call on June Carberry at 3:30 a.m., after Erroll had been shot—surely a blatant attempt at establishing an alibi. Wasn’t it suspicious, too, that at Nyeri he had asked June Carberry if she had told the police that he had been bad-tempered and peevish in the Club that night, and had told her that she couldn’t go away because she would be “his” main witness (June couldn’t remember if he had said “his” or “a” main witness); and that he had asked the police, when they came to question him, what were the chances of finding a gun “buried somewhere in Africa”; and that he had asked at another moment whether a man would be hanged if he shot his wife’s lover, having caught them in flagrante delicto? After Soames had told him that the police had been to his farm to look for bullets, didn’t Broughton show an unnatural interest in ballistics, comparison microscopes and so on, especially in a conversation with Carberry at Karen after the murder?
Then there was Broughton’s hasty lighting of the bonfire, on which police discovered a burnt golf stocking stained with blood (and his obsessive need to tell Poppy in such detail about the lighting of the bonfire); his trip to the police station with the handkerchief, shaking with nerves, incredulous, according to the police, that Erroll’s death was being treated as a motor accident, and his impatience to know the result of the post mortem. Didn’t Broughton say to June Carberry in the Club, “I won’t give her the Karen house and £5,000, and she can damn well go and live with Joss,” and “To think I’ve only been married three months, and she treats me like this”? Was this the attitude of a man who had gracefully conceded? And what of Broughton’s visit to the Union Castle agent to rebook the passage to Ceylon on the same morning that the death of Erroll was announced?
Harragin showed, too, that, far from being physically disabled, Broughton was quite capable of sustaining long walks on hunting safaris and toting heavy rifles, and that he was therefore equally capable of having pushed Erroll’s body from the seat into the footwell to enable him to drive the car; and then of walking the 2.4 miles back to Karen in the blackout in time to call on June, despite his protestations of lameness and night blindness. None of this constituted hard proof, but Harragin was trying to forge links between each piece of evidence to build up what was ever more clearly a difficult case for the Crown to prove beyond a reasonable doubt.
Apart from Poppy and the ballistics experts, Harragin’s own main witnesses were June Carberry and Gwladys Delamere. June turned out to be of more use to the defence. She provided Broughton’s only alibi; she alone gave the times of their leaving the Club together and returning to Karen, and she is the only source for what took place at the house after their return, since neither Wilks nor Diana gave evidence. Could they indeed have got back home much sooner than 2:00—which is June’s estimation?
June’s evidence was never really challenged, and Broughton himself explained his lapses of memory by claiming that he was too drunk to remember anything. June fully supported this. She even had to help him up the stairs, she said, with her arm around his waist. She was sure that Broughton at this stage was far beyond feeling any “emotion”—an ironic comment from a heavy drinker like June, unless she was claiming that Broughton was actually unconscious. But then she said that at 2:10 a.m. Broughton was in his dressing gown, bidding her good night with a knock on her door. At about 2:25 Diana arrived—also June’s estimate—and from 2:40 Diana stayed in June’s room for about half an hour. Broughton then paid a second visit to her at 3:30, twenty minutes after Diana had left to go to her own room, “to make sure she was all right.”
“Did anything else attract your attention that night?” she was asked. “Yes, after that [Diana’s retirement] Jock Broughton came along.”
“About how long afterwards?”
“About ten or twenty minutes. It is difficult to judge the time.”
“Had you no way of judging the time?”
“No.”
“Did anything else happen in the house about that time to attract your attention?”
“Diana’s dog was barking.”
“Loudly?”
“Yes, quite loudly.”
“What happened when Sir Delves came to your room?”
“He just knocked on the door and asked if I was sure I was all right.”
The only damaging evidence June gave against Broughton was her description of his tirade against Diana after the lovers left the Muthaiga Club, though this had been overheard by other witnesses. To set against that was her favourable account of Broughton’s character—his cheerfulness, his even mood, his sense of humour, his fundamental lack of jealousy, or even bitterness. June was very sure of herself in the witness box and as she stepped down, Harragin’s secretary heard her say, “Well, I’ve left his head safer on his shoulders.”
Gwladys Delamere was the only really hostile witness, and her responses to Morris’s questions were brittle.
Q:
Lord Erroll was a man of thirty-nine or thereabouts?
A:
Yes.
Q:
A man of some common sense?
A:
Sense. I don’t know whether it was common sense.
Q:
Was there any reason why he should have called you aside at the dinner party at Karen to tell you those things, as distinct from other people?
A:
I suppose he thought I had sense or common sense.
Q:
What was your interest in the matter, Lady Delamere?
A:
The tragic circumstances of it all. I wanted to make quite sure that both were definite about it.
Q:
What had it got to do with you?
A:
Purely that I was a good friend for many years of Lord Erroll.
Q:
So you wanted to know because you were a friend of his?
A:
I anticipated trouble and difficulty.
Q:
Then why did you poke your nose int
o it if you anticipated trouble and difficulty?
A:
Because Lord Erroll seemed to consult his friends about these matters.
Q:
Did you say these matters?
A:
I may have.
(Here Morris scored the point that Erroll had other enemies than Broughton.)
She described Broughton’s expression as he watched his wife and Joss Erroll dancing. “It registered many things: anger, misery, rage, brooding, intense irritation and restlessness.”
“Restlessness on his face?”
“Yes.”
Gwladys denied that she had said to him, “Do you know that Joss is wildly in love with Diana?” and that this remark may have been the reason for his troubled expression.
The foreman of the jury asked, “When you described the accused’s disposition as morose, do you mean habitually so?”
“Yes, I have always thought so.”
“It may be,” said the foreman, “that he was only morose towards you?”
“If so,” said Gwladys, “he must have been morose for twenty years.”
Later, when Broughton was in the witness box, he was asked, “Why do you suggest she should have turned against you?”
“Only by her evidence,” he answered. “She said I had a morose disposition when she knows full well I have not, and her evidence as to my distress when I was sitting next to her watching the dancing was entirely fabricated and also her saying my face registered every emotion of hate against my wife in the Muthaiga Club. Nobody was more suprised than I was at her evidence.”
Two key witnesses were not called: Diana and Wilks. Diana could not be compelled to give evidence against her husband, though she had, of course, made a statement to the police before she was told how Erroll had died, in which she may have let slip that her dog had begun barking loudly at 3:30. Did the dog bark because it heard Broughton re-entering the house? Diana left the court only once, when Erroll’s ear, by now a ballistics exhibit, was handed round in a jar of spirits. She said, “This is really too much. Poor Joss.” When Broughton’s disabilities were being illustrated by Morris, she was overheard to say, “He’s not nearly such an old crock as he’s making out.”
The prosecution’s neglect of Wilks, who would have been able to confirm or deny June’s evidence, is more surprising. They gave as their reason that Broughton’s servant would not be believed; but this had not prevented them from calling his other servants, or Erroll’s Leporello, Waiweru. or his Somali chauffeur. It seems that Wilks had made several conflicting statements, and was not to be trusted in the witness box by either side.
Morris called only eight witnesses, including Broughton and the loyal Major Pembroke, against the prosecution’s twenty. The eight were quite enough: he had already turned several of the prosecution witnesses into his own, all, except for Gwladys, testifying with impeccable politeness to Broughton’s amiability and tolerance, to his lack of temper and to what Broughton called the “unimpaired friendship” with Erroll all through the crisis. (The Crown saw this as Broughton setting a trap for Erroll; a ploy to have him always close at hand and under observation.) Among his witnesses Morris also put up his own ballistics expert, Captain Thomas Overton, to contradict the prosecution experts, although Morris had already damaged the prosecution’s ballistics case by then in cross-examination.
It was in his brilliant handling of the ballistics evidence that Morris’s expertise had been revealed. The technical battle that raged for days around a series of microscopic markings on a set of bullets was often confusing and difficult for a lay jury to follow. At moments, lawyers and experts were arguing only—as it seemed—for each other’s benefit. Yet Morris always made sure the jury knew when he had scored a point, and the ballistics evidence on which the Crown case rested provided some of the most dramatic moments in the trial.
Briefly, Morris had two propositions to attack. The first was the contention that the bullets fired at Soames’s farm (the “Nanyuki” bullets) and the murder bullets came from the same gun. If these two sets of bullets could not be matched, then, Harragin said, “The case for the Crown falls away like a pack of cards.” The second proposition was that the gun that fired all these bullets was a Colt .32 that belonged to Broughton and which he had arranged to be stolen (with another weapon which is not relevant) from the house at Karen. This Colt .32 was registered on Broughton’s firearms certificate.
Morris proved that, given the markings on the bullets, none of them could have been shot by any Colt pistol ever manufactured—that was his “one point” on which he hoped to defeat the Crown case. The Crown, however, might reply that Broughton had another .32 hidden away, possibly a Smith & Wesson. To counter this Morris—using pedantry mixed with semi-terror tactics and the judicious use of ballistics textbooks—attempted to put grave doubts in the mind of the jury about the methods the prosecution experts had used in producing their conclusion that the two sets of bullets matched. There was no trace of doubt in the minds of these experts. But if the jury were at all uncertain, Broughton would have to be acquitted.
Morris dealt with the last point first. Until he began his cross-examination, the close similarities between the two sets of bullets, as demonstrated by the Government scientists, Ernest Harwich and Maurice Fox, seemed unanswerable. Fox, the chief Government chemist, had spent almost two months in the laboratory with a comparison microscope, photographing and analysing the bullets and carefully cataloguing these similarities.
A bullet passing through a barrel will pick up, in reverse, the impression of the rifling—the lands (ridges), grooves and striations, or thin lines, caused by irregularities in the barrel. Fox had photographed these features in each bullet for comparison, but through bad marking and classification, the large pile of pictures—as Morris showed—turned out to be almost useless, hopelessly confusing to a jury. Morris suggested that Fox had wasted his two months in the laboratory. From the start Fox had been defensive and pigheaded, resisting all Morris’s definitions, and quibbling with his questions. (When Morris mentioned a work by a Major Burrard called Identification of Firearms and Forensic Ballistics, Fox said, “It is not a book on ballistics.” “What title would you give it then?” Morris asked. “I would not like to give a title to another man’s book,” answered Fox.)
Fox spent seven hours in the witness box for the Crown. Morris questioned him for a further fourteen hours, with many interventions from the judge when the two men seemed to be coming to blows. Their mutual antipathy brought comic relief to the court which had become bored and muddled by Morris’s minute examination of lands, grooves and striations. Morris asked at one point what the letters “S” and “W” signified on a cartridge.
“That the cartridge is suitable for a Smith & Wesson,” replied Fox.
“Where did you get that from?” Morris asked.
“My mother told me,” said Fox.
“Are you trying to be insolent or impertinent, Mr. Fox?”
“No.”
“Well, you are succeeding.”
The similarities were one thing, argued Morris, but what about the differences? Morris knew that there were always minute differences between two bullets fired from the same gun. He now discussed every chink and scratch visible on the bullets as if they had equal value with the Crown’s universal similarities. He went into great detail, producing anarchy out of order to a jury already bemused by ballistic science. And could the comparison between different bullets really be conclusive without the firearm itself, which the Crown would never be able to produce? Under his own tireless assault from Morris, Harwich had already agreed that the identification of a bullet by its markings was “a very complex proposition” without the actual firearm. Having got both Harwich and Fox to qualify, accept, concede certain points, Morris would then ask (turning to the jury with a look of weary exasperation), “And you still maintain that the bullets are from the same weapon?”
And now Morris moved in for the kill. It h
ad been argued, he said, that all the bullets came from a revolver whose barrel had five grooves in the rifling, which twisted along the barrel in a right-handed or clockwise direction.
MORRIS: In all these bullets, was the direction uniform?
HARWICH: Yes, it is right hand in all the bullets.
MORRIS: IS the direction in a Colt revolver right or left?
HARWICH: Left in the barrel.
MORRIS: Can you say what kind of a gun the bullets came from?
HARWICH: I can say they came from a revolver.
LORD CHIEF JUSTICE: But not a Colt.
HARWICH: As far as my experience goes, all Colt revolvers have six grooves and a left-hand twist.
It was a heavy point for the defence, and the mystery remains of why, with all its ballistic experts to hand, with Fox working on the case for two months before the trial, the Crown should have ignored this flaw in its case.
There was still the problem of Soames’s memory of the gun Broughton had used for target practice. He had said in evidence that he thought Broughton had shot with a Colt on his farm, although he wasn’t certain. He thought, too, that it was a revolver that was hinged, in which the breech is broken—a characteristic of Colts.
Morris took the weight out of that with another question: “If Sir Delves tells his Lordship and the Jury that his gun was not a gun that broke, but one in which the cylinder fell out, you would not dispute that?”
“I would believe him,” said Soames.
The similarity between the two sets of bullets—which nobody, not even Morris, disputed in the end—remained one of the most tantalising elements of the mystery. There was the added similarity of the black powder marks on Erroll’s wound, and the live bullets found at Nanyuki, also charged with black powder, which was extremely rare at the time of the events under discussion, but widely available before 1914.
