‘The declarations themselves?’ suggested Mr Clark.
But Lord Deas would have nothing to say to the declarations themselves.
‘The evidence, I say, consists of the cross-examination of those two gentlemen, for Mr Hart was not asked questions in regard to this point.’ (Mr Hart was joint Procurator-Fiscal—with Jno. Gemmel—and had merely given evidence that the third statement had been taken in his presence, the prisoner making it freely and voluntarily and having been in her sound and sober senses at the time.) And, looking to that evidence and taking all the declarations, said the Judge, he could find no ground for holding that when the prisoner’s husband was examined and his declarations taken he was known to be innocent and that his declaration was taken from him as a precognition. Both the gentlemen (Jno. Gemmel, the Procurator-Fiscal, and Mr Strathern, Sheriff-Substitute) had sworn expressly, had sworn distinctly, that they did not know at the time that James M’Lachlan had been absent from town and could not have been implicated in the crime.
Mr Clark: ‘My lord, the Procurator—’
Lord Deas: ‘Will you wait till I have done?’
Mr Clark: ‘The Procurator-Fiscal said he had no reason to doubt—’
Jno. Gemmel’s evidence may be found in the very early stages of the trial, immediately preceding old Fleming’s appearance in the witness-box—page 128. The reader may care to glance back and judge for himself how positive had been his denial that he could have known before James M’Lachlan was questioned that he almost certainly was innocent of the crime. Lord Deas, however, would have none of it. He thought the authorities had been perfectly right to apprehend M’Lachlan at that stage and to take a statement from him. So that finished that.
And the second ground of complaint, he said, was that a great many questions had been put to the prisoner in the course of her declarations. Well, that was nothing more than was done in every declaration. And as to the length of the statements, their length must depend on the nature of the case: in fact it was quite right that she should have the fullest opportunity of explaining everything that she could explain—and he thought they would find the declarations full of explanations which his friend Mr Clark would not willingly throw aside when he came to address the Court. (His friend Mr Clark must have rolled up his eyes to high heaven.) The fourth objection was that the prisoner was asked about certain articles before the articles were shown to her. But the Sheriff had said that, though there were some preliminary questions before the articles were produced, these did not occupy above two minutes.… How true this was, at any rate in the spirit, may be judged by a reference to Jessie’s second declaration, (commencing on page 96.) Lord Deas, at any rate, was satisfied with it, Lord Justice Clerk Hope and poor fire-raising Agnes Kelly notwithstanding. ‘Gentlemen of the jury, you will now hear the declarations read.’
Taken straight through in the monotonous drone of some court official—how quick and glib they must have sounded, how compact, considered, specious and deliberate: those poor muddled, desperate wrigglings on the hook of provocative interrogation, of a woman alone and abandoned and sick with dread. Well indeed for Jessie if the County Buildings could have burned up, as she had said to her fellow-prisoners she wished they would—before ever those foolish, frantic ‘explanations’ were published to the incredulous ears of the listening Court.
Mr Clark called the first witness for the defence.
The first witness for the defence was George Paton, the milkman, to be followed by Donald M’Quarrie, his boy. A comparison between their evidence and that given under cross-examination by old Mr Fleming at the beginning of the trial (pages 144 onward) may well prove a rewarding, not to say a convincing, study. George Paton appears to have been an alert young man of twenty-five. He was in the habit, he said, of supplying milk to the houses in Sandyford Place. He had heard of the death of the servant at No. 17 on Tuesday the 8th, the day following its discovery. He then remembered having been at the house on the previous Saturday morning, arriving there between half-past seven and twenty minutes to eight. He was quite sure of the time. He came off the cart but did not go up to the house—the boy Donald went up, and he rang the bell. ‘It was answered immediately.’
Mr Clark, for the defence: ‘Did you see who answered it?’
‘No.’
‘But you saw the door opened?’
‘I saw the door opened a small bit but I did not see who was at it.’
‘How much delay was there in opening the door?’
‘Very little delay. I could not pay much attention, in serving other people, but there was not much delay.’
‘Was the bell rung a second time?’
‘I couldn’t say.’
‘Was any milk taken on that occasion?’
‘No, none was taken.’
‘Were you there on the following day, Sunday; and the Monday? Was milk taken then?’
‘I was there both days and no milk was taken.’
The only time he had actually seen old Mr Fleming was on the afternoon of Monday.
Cross-examined by Mr Gifford, he agreed that he served fifteen or sixteen families in Sandyford Place. He called upon them every morning and had called on that Saturday morning. At that time of the year, however, a great many families were out of town.
‘Does it frequently happen at that time of the year that milk is not required?’
‘They all get milk that are at home. Some of them do not get it.’
The judge: ‘Do some of the houses which remain inhabited not take in milk at that season?’
Paton evidently understood this question; at any rate he answered yes.
Mr Clark, re-examining: ‘Did the Flemings always take milk?’
‘Yes.’
‘Do you remember any instances, except Saturday, Sunday and Monday, when the milk was not taken in at their house?’
‘Never to my knowledge,’ said George Paton.
And so to M’Quarrie, Mr Roughead’s ‘historic milk-boy’, key witness, star witness—for the defence—in this historic case; unless you count the old gentleman himself, whose evidence was, however, supposed at any rate to have contributed to the other side. Short, sharp and very much to the point. Yes, last July he had been with George Paton as usual helping to take round the milk, calling as usual at Sandyford Place. ‘I know old Mr Fleming, who lives there. I mind of hearing of the death of the servant in that house. I heard of it on the Tuesday morning. I mind the Saturday before that Tuesday morning.…’
‘What happened on that morning?’
‘I went up and rang the bell. Old Mr Fleming answered it.’
‘Did you ring more than once?’
‘No, I only rang once. I hadn’t to wait any time before it was answered.’
‘Was the door shut?’
‘Yes.’
‘Did you hear anything before Mr Fleming opened the door?’
‘The first thing I heard after ringing the bell was the chain coming off the door.’
‘Are you quite sure of that?’
‘Yes.’
‘And after the chain came off the door, the door was opened?’
‘Yes; by old Mr Fleming.’
‘You saw him?’
‘Yes.’
‘Was he dressed?’
‘Yes, he was dressed. He had on black clothes.’
‘Did he say anything?’
‘He said he was for nae milk.’
‘Did he say anything more?’
‘No, nothing more.’
‘And this would be—what time?’
‘This would be about twenty minutes to eight.’
‘Is that the usual time of getting to Sandyford Place?’
‘That’s the ordinary time of getting to Sandyford Place.’
And—‘Are you sure, quite sure, of everything you have said?’
Yes, Donald was quite sure of everything he had said.
Cross-examined by Mr Gifford, he replied there was no day on which the door was no
t opened at all at No. 17.
And to one final question from Mr Clark: No—he had never before known old Mr Fleming to answer the door.
Mrs Mary Smith followed. She had known the dead woman over five or six years, and knew the prisoner also. She had heard Jess M’Pherson speak of Mrs M’Lachlan many times, and always ‘in a very friendly way’. She had last seen Jess about a week before her death; they met on Sauchiehall Street, and Mrs Smith, who had not then seen her for a couple of years, was astonished at how wretched she was looking. ‘She was looking real ill and I asked her, “How are you liking Mr Fleming’s family?” She said, “I do not feel very happy or very comfortable with old Mr Fleming, for he is actually an old wretch and an old devil.”’
‘Is that what she said?’
‘Those are the words she said.’
‘Speaking quite seriously?’
‘She said that very seriously.’
‘And then?’
‘I then asked her if she was not comfortable with him, as I never heard her saying anything bad of him before. She said she was very unhappy and uncomfortable, and stated that she would come and see me on that day fortnight, as it was her Sunday out, and stay to tea. There was something, she said, she would like to tell me, but as Sandy [the witness’s husband] was walking beside me she would tell me when he was not there.’
‘I understand she was to come to your house on Sunday fortnight to tell you something? What did you understand that something to refer to?’
‘I could not tell what it was about for she never lived to come and tell me. I said to her, “You are looking ill,” and she said, “I cannot tell you what is the cause because Sandy is with you.”’
She had seen Jess M’Pherson and the prisoner many a time together in Jess’s little grocery shop, and they always seemed fond and affectionate. They were great friends.
Lord Deas: ‘Did you ever understand that Jess M’Pherson was thinking of going abroad?’
Mrs Smith had not.
And Mary M’Kinnon, foster-sister of Jess, had reproached her for not coming more often to see her; and Jess had replied that it was ‘easy for me to speak; she had got so much to do by some servant going away [probably meaning the second servant, who went, by custom, with the family to the summer house at Dunoon], and that her heart was broken by the old man, who was so inquisitive that the door-bell never rang but he must see who was there and know all about them.’ And Martha M’Intyre, who had been in service there, confirmed that the old man was tirelessly inquisitive as to who was in the house and what the maids did with their time when they went out; and specially so in his enquiries about Jess.
Lord Deas: ‘What do you mean by “specially”? I thought he enquired about all?’
Counsel: ‘Did he enquire more particularly after her than the others?’
‘He always enquired after her.’
Counsel asked her, lastly: ‘Was Jess M’Pherson a strong woman?’
‘She was a wiry woman,’ said Martha M’Intyre.
P.C. Cameron was called next, and there was a slight scramble as he was found to be in the dock, guarding the prisoner. His evidence related largely to the odd little episode of Mr John Fleming having said to all and sundry that he had heard the key fall from the lock inside the room where the woman lay dead; but as has been said, this business was almost certainly some muddle made in over-excitement and is of no importance.
Jessie’s sister gave evidence that James M’Lachlan always gave his wages—thirty shillings a week—to his wife (though we know he was obliged to take back twelve for his own use). Their brother was very generous to her; after every voyage he gave her money, and had once given her as much as twenty-five sovereigns: that was last November.
Her sister’s health was very bad; she had known her bedridden for as long as four months—following the birth of her child—and since she had been at the Broomielaw she had had at least one spell lasting six weeks.
Robert Jeffrey, a police officer, said he had found a bag in old Mr Fleming’s bedroom upstairs, a large grey canvas bag for keeping dirty linen in. A bag was confidently produced in court, and he threw them all into something of a tizzy by saying that it was not the one he had found. But anyway, the mark was about the size of a shilling, in the centre of one side of the bag. It was dry and appeared to be ‘not new’. It had the appearance of blood. (‘Might it not be something else?’ prompted Lord Deas: he had never suggested that the marks on the rags up at Hamilton ‘might be something else’. But tiresome Jeffreys stuck to his opinion. He thought it had been blood.)
He had found the bag on either the Tuesday or the Wednesday after the murder. He further found a narrow strip of cotton on it ‘under the covering of a chair’ in the bedroom; which, however, as we have said, seems likely to have been only some old piece of bandage and not worth troubling about. Under cross-examination by Mr Gifford, ably supported by the judge, he agreed that with this exception there were no marks of blood on any article in the old man’s room upstairs, nor upon his clothes. With Donald Campbell and another detective he had made a search in the house in order to find evidence against Mr Fleming, if such existed, and the witness thought he could say he was sure that nothing could have escaped their notice of that kind which might have been evidence of Mr Fleming’s guilt. Mr Fleming was in custody at that time.
(Donald Campbell had, in fact, found spots of blood on the two shirts in a drawer in Mr Fleming’s basement wardrobe-room; and as Jeffrey was in some sort speaking for all three searchers his answer does not in fact convey a true impression. However, as no one in court, including the defence, chose to remark upon it, perhaps it is not the author’s business to do so.)
Alexander M’Call, superintendent of police, who had given evidence at the beginning of the trial, was now recalled by Mr Clark. He remembered finding or being shown the bag and seeing the blood-stain; unlike Jeffreys, however, who had seen it as the size of a half-crown and on the side of the bag, M’Call had seen it as extending across the whole bottom of the bag—the bag being about three feet long by two feet broad. There was some soiled linen in the bag, which was free from blood-stains; the bag looked as though it had been washed since the stain appeared there, though whether recently or not he could not say. Both bag and stain were quite dry when he saw them.
On the Monday night, when he first came to the house, he had found the little wicket or window into the area fastened; but the old man had told him that on the Saturday morning it was not ‘snibbed’. There were no marks of footsteps on the sill or in the area.
And finally—P. C. Campbell, who had been on his beat, including Sandyford Place, from eight o’clock on the Friday night till six next morning. He had that night seen nothing, but on the following evening, some time between half-past eight and nine, he had seen two women come to the door of No. 17 and stand talking a minute; had seen one woman go back into the house and the other come away. He knew it was that night, for he had just turned back to post a letter to his father in Oban.…
Asked to look at the prisoner—who ‘stood up and confronted him deliberately’—he said she was not either of the women he had seen. He was quite sure of that. It was clear daylight. Well, yes, it was evening, but it was perfectly clear.
A bonny evening in early July: and everything perfectly clear.
In accordance with Scottish law, in which defence counsel always has the last word, Mr Gifford, for the prosecution, rose to address the Court.
CHAPTER SIXTEEN
It was five o’clock—an hour when any present-day court would certainly have adjourned, to take the speeches of counsel and the summing-up on the following day, when both speakers and jury would have been fresh and unwearied. But it was once again to be nine o’clock when the judge rose—having even at that hour expressed himself as willing to address his ‘few observations’ to the jury—an offer which they found themselves unable to accept. (They must have been thankful later: the few observations occupied four hours.) It was
the third day that they had sat there listening, for eleven hours each day; the third day that counsel had laboured under deep concentration, in one case at least in deep anxiety, for eleven hours; the third day that for eleven hours the frail, anxious, lonely figure had sat silent in the dock—a woman whose doctors were said to have declared that she might die at any moment if too much strain were put upon her unsound heart.
Mr Gifford’s speech lasted till half-past seven.
It was a very fair speech—a fair and honourable speech, whose burden came in its second paragraph: ‘While our hearts may bleed, our hands must do justice.’ But it left unaccounted, for some astonishing facts that had emerged from the evidence.
Mr Gifford took first the charge of theft. The silver articles from the dining-room at Sandyford Place had been proved (by old Mr Fleming) to have been in the house on Friday, July 4. They had been pawned next morning and the woman who pawned them was identified positively as the prisoner. The jury had heard her declaration admitting that she had pawned them and giving her story of how she came by them—old Fleming having brought them to her house. He postponed comment on the dresses missing from the dead woman’s room because their theft was so intimately mixed up with the charge of murder.
The special defence against this charge was that the crime had been committed by James Fleming.
But this was not a trial of the guilt or innocence of old Mr Fleming. It was not even relevant, said counsel in substance, that in any crime there might be more than one person concerned. ‘For the question always is, and the only question is: Is the prisoner guilty or is she not guilty?’ It was no part of their verdict to say that anyone else might be concerned. All they could find was that the prisoner was concerned.
He took them over the scene of the crime, over the postmortem findings. The conclusion was that the deceased had certainly been murdered, and in conditions of extreme ferocity. He ran over the evidence and from it suggested the conclusion that it was not very clear whether the woman had been murdered in the kitchen or the bedroom—and that it was not, anyway, of much consequence. He directed their attention to the slightly differing evidence about the marks of washing on the floors, and the trail, ‘or wipe rather’, that existed in the lobby, which he deduced from Dr Macleod’s evidence was not a mark of washing, though the thing that was trailed might have been wet with blood.
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