by Q. Patrick
“My lord, before the prisoners plead to this indictment, I have a submission and application to make, and that is that in the interest of each of these prisoners there should be two separate trials. The first indictment charges them both as principals with the murder of Percy Thompson. I have had an opportunity of reading the depositions and the exhibits. In my submission, it is clear that there must be a question of the admissibility of evidence which may be evidence against one prisoner and may not be evidence against the other, and that the introduction of such evidence must of necessity prejudice the case of the other prisoner.”
Sir Henry rose and said: “I desire to associate myself with the application of my learned friend.”
The Solicitor General parried: “I hope that your lordship will refuse the application.”
By law, this was a decision left entirely up to the discretion of the presiding judge. Now Mr. Justice Shearman gave the first indication of his attitude toward the case. With hardly a moment’s hesitation, he snapped: “I can see no grounds for granting the application.”
Sir Henry had swiftly and ignominiously lost the first round for Edith Thompson.
The clerk of the court now rose to read the indictment. The King was bringing two indictments against Mrs. Thompson and Bywaters together and four indictments against Mrs. Thompson alone. The two indictments against them both were murder and conspiracy to murder. The indictments against Edith separately were inciting to murder, inciting to commit misdemeanor, administering poison with intent to murder, and administering a destructive thing (i. e., ground glass) with intent to murder. These last four indictments, of course, had all sprung from the letters.
There was a confusion between these indictments that brought frequent muddle to the trial. But, in fact, only one indictment was under consideration—the first indictment, the one referred to by Whiteley, the indictment of murder.
This was the charge droned out by the clerk of the court.
“Frederick Edward Francis Bywaters and Edith Jessie Thompson, you are charged together on the indictment with the offense of murder, the particulars being that on the fourth of October in this year you murdered-Percy Thompson. Frederick Edward Francis Bywaters, are you guilty or not guilty?”
Bywaters, with all eyes on him, answered in a clear, confident tone:
“Not guilty.”
The clerk of the court turned to Edith Thompson. Excitement, almost as audible as the rustle of programs, rippled around the gallery.
“Edith Jessie Thompson, are you guilty or not guilty?”
Edith Thompson, in a bare whisper, said:
“Not guilty.”
This brief moment of excitement was followed by the long, boring routine of selecting a jury. The ideal juror, of course, is someone who knows nothing about the case and has formed no previous prejudices. Thanks to the newspapers, such a person no longer existed in the British Isles, and the jury was picked almost at random. Eventually a panel of twelve was chosen, including one middle-aged woman, who thus became something of a novelty, since women had only recently won the right to act as jurors. This lady, in fact, made small history by becoming the first woman at an Old Bailey murder trial ever to spend the night locked up with her fellow jurymen.
During this procedure, the prisoners had been permitted to sit, and those of the galleryites lucky enough to be able to see had a good chance to observe them. Freddie Bywaters looked as young and almost as handsome as he had in his photographs. His arms were folded in front of him and he seemed calm, nonchalant, and as wholesome as the boy next door.
The infamous Mrs. Thompson, however, was less easy to judge. In the first place, it was difficult to see her face or her figure, for she wore a heavy muskrat coat and a black velvet hat with coq feathers that irritatingly shaded her features. She looked ill, haggard, and broken. But it was not until later, when the heat in the courtroom made her remove her coat, that the slight figure, almost improperly girlish for a woman of twenty-nine, was revealed to the public view.
Once the jury had been sworn in, the moment had come for Sir Henry’s second round. He asked that the jury should be retired, and as soon as they had left the court, he launched his ambitious attack on the admissibility of the letters as evidence.
A learned and rather turgid legal squabble, in which Mr. Justice Shearman took part as moderator, then ensued. It was established that the prosecution was going to charge Mrs. Thompson as a “principal in the second degree.” This meant that, although she was not to be accused of striking any blow, she was to be accused both of inciting Bywaters to strike the blows and of having been present herself at the time of the crime. Sir Henry argued that, if the indictment under consideration had been that of incitement to murder, the letters might have been admissible to prove that she had, in fact, incited Bywaters to kill her husband, but, since the indictment under consideration was actually murder itself, and since all the evidence apart from the letters showed that Mrs. Thompson had been taken completely by surprise at the time of the crime, the introduction of the letters could only militate prejudiciously against her by bringing in extraneous matter.
Whiteley joined the attack at this point, claiming that, since all the letters that contained any passages that might be considered inciting had been written several months before the crime, they could no longer, after such a lapse of time, be considered as an inciting influence.
The Solicitor General, on the other hand, maintained that the letters, since they had certainly been received and kept by Bywaters, were evidence in the case against Bywaters to show that he might well have been affected by them. He also maintained that they were a justifiable factor in the case against Mrs. Thompson since they were evidence to indicate that, although she did not strike the blow, she had incited Bywaters to inflict it.
Mr. Justice Shearman, at this point, showed signs of sympathizing with the Crown, although he admitted: “It is a very difficult question.”
Sir Henry made one last effort. He pointed out that Percy Thompson had been stabbed to death with a knife. Even if the letters could be taken literally, Edith Thompson had suggested poison and ground glass as methods of murder, but she had never suggested a knife. If Percy Thompson, then, had been killed by poison or ground glass, the letters would be relevant. Since he had died from stabbing, the letters were irrelevant.
Even to the lay mind, this point is a dubious one, and it is clear that Sir Henry had all but admitted defeat.
That defeat came soon afterward with a crisp statement from Mr. Justice Shearman: “I think the letters are admissible.”
The second round had been lost for Edith.
Chapter Eight
Now was the moment for the prosecution to open its case, and for the first time Mr. Thomas Inskip rose to face the Court of the Old Bailey.
Thomas Inskip laid no claims to brilliance. Deeply religious, with a bishop for a brother, he would have found such a colorful reputation as Sir Henry’s distasteful. But he had already won praise as a learned and effective advocate, and later was to soar in his profession, becoming an earl, Lord Chancellor, and finally Lord Chief Justice of England.
In his handling of the Thompson-Bywaters case, however, Mr. Inskip showed none of the personable ability of his past or his future. His opening address to the jury was stumbling. He frequently consulted his notes and gave the impression of having only the slightest grasp of the matter in hand. This, in fact, may well have been the truth, since he had had little experience with criminal law and had been introduced into the case only at the last minute, when its notoriety had made the presence of the Solicitor General himself advisable.
“May it please your lordship, members of the jury …
In his clear, unstimulating voice, Thomas Inskip proceeded to give a bare account of the crime itself, a statement of the ages and professions of the accused and the deceased, and a bald sketch of the triangular relationship between them. Having done this, he moved directly to the letters.
“The fact of importance, for the moment is that during his [Bywaters’] absence there was a passionate and ardent correspondence between these two persons which showed that they were engaged or intended to engage in an intrigue. Of course, Mrs. Thompson still lived with her husband, but the letters, as I have said, were of a passionate nature.”
After this far from passionate introduction, Thomas Inskip began, rather haltingly, to read random paragraphs from Edith Thompson’s letters with a total disregard for chronological order. He chose, needless to say, the most damaging passages he could find, and tried by lifting them from their context to present a convincing picture of two ruthless murder conspirators.
“I had the wrong porridge today, but I don’t think it will matter.” What, asked Mr. Inskip, did that mean? What was the wrong porridge? “Immediately I have received a second letter, I have destroyed the first.” Didn’t this, he implied to the jury, suggest that the letters from Bywaters must have been criminal in content? He drew attention to a newspaper clipping with the headline: “Poisoned Chocolates for University Chief. Deadly Powder Posted to Oxford Chancellor.” This he linked to a passage in the letters: “I suppose it isn’t possible for you to send it to me—not at all possible. I do so chafe at wasting time, darlint.”
Next he referred to the celebrated passages concerning ground glass and bitter taste. Even if the jury did not believe that Mrs. Thompson actually fed ground glass to her husband, didn’t these passages, he suggested, prove how she had been working and preying on Bywaters’ mind—inciting him to murder? To show that overwhelming pressure had been exerted by Mrs. Thompson, Mr. Inskip quoted other passages—attempts to fan Bywaters’ jealousy against Percy, dark hints at “risking all,” sinister qestions about digitalin, bichloride of mercury. He prouced yet another clipping: “Chicken Broth Death. Rat Poison Consumed by Fowl Kills Woman.”
“This,” he explained, perhaps unnecessarily, “was a reference to the death of a woman who was said to have taken poison in chicken broth.”
Finally the Solicitor General came to the letter that was the most important of all, since it was the last letter Edith Thompson had written—less than thirty-six hours before the crime. Here, if anywhere, the “incitement to murder” should be found at its most flagrant. Mr. Thomas Inskip did what he could with the material at hand. It wasn’t very much.
“It seems that on the Sunday or Monday before the crime, Mrs. Thompson wrote to Bywaters. The letter (Exhibit Sixty) is undated, and it commences:
‘Darlingest lover of mine, thank you, thank you, oh thank you a thousand times for Friday—it was lovely—its always lovely to go out with you. And then Saturday—yes I did feel happy … All Saturday evening I was thinking about you … I tried so hard to find a way out of tonight darlingest but he was suspicious and still is—I suppose we must make a study of this deceit for some time longer. I hate it.… Don’t forget what we talked in the Tea Room, I’ll still risk and try if you will—we only have three and three-quarters years left darlingest.’
“This is a rather cryptic reference to a period that Mrs. Thompson mentions more than once. She speaks sometimes of four years; then fifteen months have passed, and now she says there are three and three-quarters years. I ask—what did they talk about in the tearoom? I put it that there was a long course of suggestion resulting in a desire to escape from the position, and a fresh suggestion was made in the tearoom.”
This was the best Mr. Inskip could do. It didn’t seem to strike him as odd that a-woman committed to murder in less than forty-eight hours should write, “We only have three and three-quarters years left.” Nor did he wonder why a woman who, according to him, hoped to be free of her husband in less than two days should have written, “We must make a study of this deceit for some time longer.” He found nothing unusual in the fact that this woman should describe an afternoon spent plotting murder as “lovely.” All he could see was that sinister tearoom. “Don’t forget what we talked in the Tea Room.”
Having left the jury with this picture of the two fiendish conspirators perfecting their murder plan over cups of tea, Mr. Inskip allowed his peroration to peter out into a second, repetitive account of the crime itself, a reading of the statements made and signed by the two prisoners, and the following finale:
“I suggest to you, members of the jury, that you will have to consider whether the hand that struck the blow was moved, was incited to the crime by Mrs. Thompson. It is no answer that the whole of the incitement should come from Mrs. Thompson. It may be that the passion of the young man may have led him in that direction. There is the undoubted evidence in the letters upon which you can find that there was a preconcerted meeting between Mrs. Thompson and Bywaters at the place [No one has ever been able to find this evidence. Mr. Inskip is guilty of deliberate misrepresentation here.]; but supposing you were not wholly satisfied that there was a conspiracy made to effect the murder at this place and time, if you are satisfied that Mrs. Thompson incited the murder and that, incited and directed by her controlling hand, Bywaters committed the murder, then it will be my duty to ask you, after hearing the evidence, to find her who incited and proposed the murder as guilty as Bywaters, who committed it.”
By the time Mr. Inskip resumed his seat, the excitement in the court had collapsed like a neglected soufflé. But even the colorless, patternless performance of Mr. Inskip had been unable to destroy the telling effect of the extracts from the letters themselves. There they were, already well known to the jury, but given an extra cachet from direct quotation by the Solicitor General.
Mr. Inskip’s failure had in no way eased Mrs. Thompson’s predicament.
The witnesses for the prosecution now started to take the stand. The first witness was Uncle Laxton, from whom Sir Henry extracted the statement:
“It was an ordinary happy theatre party.… Mr. and Mrs. Thompson appeared to be on their usual terms.”
This was a small point won, tending to show that Edith Thompson was not, as a guilty conspirator might be presumed to be, unnaturally keyed up at the performance of “The Dippers.”
And, with each of the witnesses that followed, Miss Pittard, Mr. Cleveley, Mr. Webber, Dr. Maudsley, and the various police sergeants, Sir Henry drummed home the same point. None of these witnesses could produce a shred of evidence to suggest that Edith Thompson had had foreknowledge of the crime. In fact, the piteous cry heard by Mr. Webber of “Oh, don’t, don’t!” was a telling point in favor of her innocence.
After Percy Thompson’s brother Richard had given his version of Edith’s behavior on the night of October third, which differed in no way from the other versions, Dr. Percy James Drought, the Ilford divisional police surgeon, was called to the witness stand, and at the same time Frederick Bywaters’ knife was passed to the jury for examination. This knife, big and deadly, caused a moment’s excitement, and at the sight of it, according to newspaper reports, Edith Thompson broke down for the first time and started to sob.
Freddie had done himself a disservice in helping the police to retrieve the weapon. A knife in the abstract is much less damaging than an actual knife—particularly one so large and lethal, so unlike a knife that someone might just happen to have on his person.
Dr. Drought’s testimony, too, made the murder seem much more brutal than it had before, revealing as it did that the two savage knife blows that had caused Percy Thompson’s death had almost certainly been struck from behind.
Freddie’s mother was the next witness, a dignified, tragic figure. Examined by Mr. Roland Oliver for the Crown, she told all she knew of Freddie’s movements on the day of the crime, and, under cross-examination by Mr. Whiteley, gave a touching character testimonial for her son, who had been “one of the best that a mother could have.”
Mrs. Bywaters was followed on the stand by Mr. William Eustace Graydon, Edith’s father. He was examined by Mr. Travers Humphreys and gave a brief account of Bywaters’ relations with the family and described the male prisoner’s last three visits to
the Graydon home, ending with his arrest.
In cross-examination for Bywaters, Mr. Whiteley was able to establish the fact that Freddie’s manner, even on the night of the murder itself, had seemed completely normal to the Graydons. But it was Sir Henry, cross-examining for Edith Thompson, that made the shrewdest use of Mr. Graydon. First he showed Edith Thompson’s father two of the newspaper cuttings that dealt with the poisoning of a curate. Mr. Graydon admitted that the doctor in the case, Dr. Preston Wallis, was the Graydons’ own personal physician, and could well have been Freddie Bywaters’ at one time, too.
Sir Henry was thus able to show that at least two of the clippings that the Crown considered incitements to murder could have been sent to Freddie by Edith merely as gossipy items about a man they both knew.
Having made this point, Sir Henry handed to Mr. Graydon for identification one of Edith’s letters to Freddie, Exhibit 24, dated June 13, 1922. He read from it:
“I rang Avis yesterday and she said he came down there in a rage and told Dad everything—about all the rows we have had over you—but she did not mention he said anything about the first real one on August first—so I suppose he kept that back to suit his own ends. Dad said it was a disgraceful thing that you should come between husband and wife and I ought to be ashamed. Darlint, I told you this is how they would look at it—they don’t understand and they never will any of them.”
Sir Henry asked Mr. Graydon to comment on this passage. Mr. Graydon said:
“Thompson never came to me and made any complaint as to the conduct of Bywaters with my daughter. That is the purest imagination.”
Sir Henry continued to read:
“Dad was going to talk to me Avis said—but I went down and nothing whatever was said by any of them. I told Avis I should tell them off if they said anything to me. I didn’t go whining to my people when he did things I didn’t approve of and I didn’t expect him to—but however nothing was said at all. Dad said to them ‘What a scandal if it should get in the papers,’ so evidently he suggested drastic measures to them.”