The Jury (23 page)

MR JUSTICE SARUM: It is late in the day, Mr Harcombe, to object to the jury.

MR HARCOMBE: My lord, nothing is further from my thought than to object to this jury more than to any other jury that might have been empanelled. I make no question at all that the members of this jury came to the court as free from prejudice as it is humanly possible for people to be who do not possess trained legal minds, and who have never had occasion to acquire the habit of suspending judgement and the ability to weigh evidence. I have been greatly impressed, and subject to correction I hazard the belief that your lordship has been impressed, by the close attention which the jury have given to the evidence my friend has put before them. But my point is that remarks made in another place, by a gentleman dressed in a little brief authority, cannot fail to have coloured the mind of the entire newspaper-reading public to the prejudice of my client. Your lordship will forgive me if I seem to labour a point which is not after all my main point in this submission, but it is a matter on which I feel very strongly. Nobody has ever questioned the rule and tradition of justice, as it is administered in this country, which
is that an accused person is presumed innocent until he has been manifestly proved guilty by the evidence for the Prosecution. I submit that in this case that presumption was overlaid, in the minds of the jury, by a prejudice to the contrary.

MR JUSTICE SARUM: You say that that is not your main point in this submission. I must ask you to come to your main point. If you wish to imply that persons appointed to inquire into the cause of a death are mischievously exceeding their duty when they stray beyond that province, I shall not, so far, disagree with you. But if you are contending that what was said in another place had the necessary effect of making this trial abortive from the start, I cannot agree. Nor could I have agreed, had you offered such a contention at the proper time. You will recall, moreover, that I explicitly warned the jury to put all prejudice from their minds.

MR HARCOMBE: Yes, my lord. And I do not question that so far as lies in their power they have obeyed your lordship's injunction. My point about prejudice is sufficiently made. I will offer no further observations on that head, but will come to my second and main contention, the insufficiency of the evidence. I agree that, if there is sufficient evidence, the overlaying it with prejudice does not affect the case. But here, in my submission, the evidence is manifestly insufficient. It is evidence upon which the jury cannot reasonably convict.

MR JUSTICE SARUM: You are asking me to tell the jury that on the evidence that has been brought they cannot reasonably convict?

MR HARCOMBE: Yes, my lord. I should hardly be going too far if I said that there was no case to answer. I will not, however, say that. In so far as there is a case I am prepared to refute it point by point and to call evidence in proof of that refutation. I am not afraid of the issue. But I say, and I ask your lordship to say, that upon this evidence the prisoner ought not to be required any longer to stand before the bar of judgement, in peril of his life. The story of the Crown is plausible on the surface, but it is no more than plausible: it is not convincing and it is a thousand miles from being proved. Much of the evidence has been of a kind that has no bearing, or at least no direct bearing, on the issue, and of a kind calculated
to augment the moral prejudice that already existed. A great deal has been made of the prisoner's so-called infidelity to his wife, and to the fact that he intended to visit America in the company of a woman not his wife. From this we are invited to infer that he poisoned his wife by adding chloral, whether in oscitalin or in some other compound, to a cup of malted milk. No evidence of his having done so has been adduced, and it is clear that even if he did so—which he is prepared to deny and eager to deny—it would remain for the Crown to prove murderous intention, since of the 19.7 grains of chloral found by Dr Lampetter at the post-mortem examination, as much as fifteen grains is admitted to have been given medicinally by Dr Cartwright. Allowing a margin for absorption, that leaves some twenty grains or less to be accounted for, and it has been established in this case that twenty grains is not necessarily, or even probably, a fatal dose for an adult. Any one of three other people may have given that other dose—Mrs Tucker, Mrs Tucker's husband, the deceased woman herself. And whoever did it may well have done it innocently, seeing that it was not, in itself, a lethal dose. Not a tittle of evidence has been adduced to show that the prisoner possessed chloral or could have possessed it. Nor has it been so much as suggested that he had any means of knowing that a drug containing chloral had been given, or was about to be given, by order of Dr Cartwright.

MR JUSTICE SARUM: That is all you have to say on this head?

MR HARCOMBE: Yes, my lord.

MR JUSTICE SARUM: It has been submitted by learned counsel, on behalf of the prisoner, that the evidence is so insufficient that it is my duty to withdraw the case from the jury. I have listened to his arguments with attention and I wish to make it perfectly clear that I make no sort of comment on them. What I have now to say is not to be taken as implying that I have formed any opinion whatever on the issue before the court. And what I have to say is that the case must proceed.

MR HARCOMBE: May it please your lordship. Members of the jury, you have been giving very careful attention to this case, and I am sure that you will listen with equal patience and care to what remains to be said. For it would be indeed grievous and unfair—and I know my friend the Attorney-General will be heartily with me in this—if having patiently heard all that the Crown can urge against the prisoner up to this point, you were to hear with any less care, any less degree of patience, what is to be said in his defence. I do not fear or anticipate any such thing: on the contrary I know that I can rely on your giving me your closest attention. If you do that, I think I shall have no difficulty in convincing you that the case against Roderick William Strood is a very weak case indeed, a flimsy structure of suspicion, conjecture, and false inference. That the case has been very skilfully pieced together, and very skilfully presented, you do not need to be told. But indeed I hardly know whether to admire my learned friend's skill or to marvel at his audacity. He has presented a case that has all the high finish of a piece of well-wrought fiction, and I shall suggest to you, I shall do more than suggest to you, that in fact—though not, of course, in the estimation of my learned friend—it
is
fiction in its general character and especially in the particular conclusion to which it points.

Here is the case of a man charged with murder where no murder has been proved to have occurred. Here is a man charged with poisoning his wife with chloral, and no evidence has been offered to show either that he was in possession of chloral or that he had any means of obtaining it. Members of the jury, I say to you not only that the facts before you are insufficient to justify you in returning a verdict against Roderick Strood: I say that they would be insufficient to justify a verdict of murder against anyone. Of course, murder may have been done. I do not deny the possibility. But when we have got the facts, when we have extracted the few definite facts from the agglomeration of prejudice and suspicion and pure
fancy which is the case for the Crown, when we have got at those facts, we find, I suggest, that they do not clearly point to murder at all, whether by Strood or anybody else: they are equally consistent with a theory of suicide or a theory of accidental death. You have heard the medical evidence. You have heard that in the opinion of Dr Lampetter, who performed the post-mortem examination, the late Mrs Strood died of chloral poisoning. But even on that point there is an element of doubt. Even if we concede that the chloral was a contributory cause, there may well have been other causes which these medical gentlemen were unable to detect. For all we can know, Mrs Strood may have inherited a subtle and unsuspected form—if you like an all but imperceptible form— of that heart disease of which, as you will hear in evidence later on, her own mother died at the age of fifty-six. So far as the evidence for the Prosecution has revealed, her heart was never, during life, subjected to a searching examination. And if my learned friend asks why we should seek to bring in other causes when, as he might say, there is this fact of the chloral staring us in the face, I answer: Because of the comparatively small amount found in the body, an amount which as Dr Lampetter admitted if I understood him aright, has often been taken without fatal results. Let me make myself perfectly clear on this point. I do not say that Mrs Strood positively did not die from chloral poisoning: I say only that there is some doubt in the matter. Dr. Lampetter himself— and I speak subject to correction, for nothing is further from my wish than to misrepresent him—Dr Lampetter himself used expressions which to my mind, and I think to any fair mind, implied an element of doubt. He used the word 'probability'-

ATTORNEY-GENERAL: 'Overwhelming probability' was the expression used.

MR HARCOMBE: I am obliged to my learned friend. 'Overwhelming probability.' But you, members of the jury, will not, I hope, allow your judgement to be overwhelmed by mere probabilities: the thing must be established for you beyond all reasonable doubt before you will be justified in returning a verdict against my client. You and I are not medical men, and ninety-nine times out of a hundred we are
humbly prepared to defer to the opinion of an expert, and if that expert speaks of a 'probability', or of an 'overwhelming probability', well, we take a chance, we give him the benefit of the doubt. Ninety-nine times out of a hundred, I say, we can do this, and not regret it. But this is the hundredth time. A man stands in peril of his life, on a charge of murder. You cannot take chances in such a matter: it would lie heavily on your consciences for evermore, if you did. You cannot take chances, and if there is any doubt in the matter, it is the accused man, not the expert witness, that is entitled to have the benefit of it. That, as my lord will tell you, is the law; and that is the obligation placed upon you.

That is one weakness in the case against Roderick Strood. But it is not the only one and it is not the most serious one. In cases of alleged murder by poisoning it is customary for the Prosecution to bring forward evidence called 'tracing possession'—that is, tracing into the possession of the accused person the poison with which the murder is said to have been committed. In this case no such evidence has been called— not a shred of it, not a hint of it. On that point there is nothing in this case beyond what I venture to describe as an unsupported hypothesis. The Crown seeks to persuade you that chloral and hyoscyamus were introduced by Strood into the malted milk that Mrs Tucker left within his reach when she returned to the kitchen to fetch biscuits. You will remember Mrs Tucker in the witness-box, and if ever there was an unreliable witness, if ever there was a witness as cram-full of malice as an egg is full of meat, that witness is Mrs Tucker. You noticed perhaps, not only her malice, but the very grave discrepancy in her evidence. First she said that Mr Strood took the tray from her and placed it on the hall-table; later she said that she herself placed it on the table; then she tried to brazen it out that her first version was accurate; and finally she confessed that she didn't know, she couldn't remember. And this is the chief witness for the Crown!

That is one specimen of Mrs Tucker's accuracy. Here is another, and I want you to pay particular attention to these points, remembering that a man's life depends on your coming to a just view of this evidence. Answering the learned Attorney-General, Mrs Tucker said: “He told me to prepare a
cup of malted milk for her.” But in cross-examination she admitted that the mention of malted milk came in the first place from herself, not from the prisoner, and that the prisoner merely assented to her suggestion—I can put it higher than that and say her plain statement—that malted milk was to be prepared. You will see the significance of that. It means that the prisoner did not contrive, and could not have foreseen, that this beverage, or any other beverage, was to be sent upstairs to his wife. So much for Mrs Tucker! It is on the word of this woman that the whole case rests—or if not the whole case, certainly the vital crux of the case. Such as it is, the crux of the case. Take away Mrs Tucker's evidence and what have you left? Nothing worth a second glance. Now Mrs Tucker makes no secret of her dislike of the prisoner, though she did attempt to withhold the fact that he had had occasion to rebuke her for insolence to her mistress. And the scraps of dialogue she served up to us—fruit of her industrious eavesdropping—what are they worth, what do they amount to? Are you not convinced, in your own minds, that whatever Mrs Tucker may have heard pass between her master and mistress, it has been so twisted and distorted by her memory, so coloured by her dislike of Mr Strood, that what she heard bears very little relation to what she thinks and says she heard? I do not say that Mrs Tucker is dishonest; I do not suggest that she has come to this court with the deliberate intention of bearing false witness against an innocent man; but I do suggest that she is, however honest and well-meaning, a dangerous woman, a woman with an imperfect sense of fact, a woman easily duped by her own fancies and quick to translate mere suspicion and conjecture into terms of positive assertion. She gets it into her head that her mistress has been murdered, and her dislike of Mr Strood suggests him as the guilty person. As soon as the notion presents itself to her, it becomes a conviction; and in the light of that conviction she begins to remember things. She remembers things that happened, and she thinks she remembers other things, things that in fact did not happen. I have already given you an example of that. And between the true and the false memories, she is unable—perhaps unwilling—to distinguish: they are all one to her and they'll all help, she thinks, to hang that
wicked Mr Strood. For my own part, members of the jury, I would not hang a dog or shoot a rat on the evidence of a woman like Mrs Tucker.