In charging the jury, Mr Justice Crampton referred to the mantle of mystery spread over the case, and explained the nature and effect of circumstantial evidence. Having reviewed the undisputed facts, his lordship went through the proof at large. That the parties were not living on good terms as husband and wife was proved by the character and conduct of the prisoner. The testimony of all the medical men was, substantially, that the external injuries could not have been the cause of death. While they found no marks of violence, that did not exclude the mode of destruction suggested by the Crown—the forcible application of the sheet—which the doctors admitted would leave no signs distinguishable from those of drowning. All were agreed that the appearances, external and internal, were consistent with either simple drowning or forcible immersion. Dr Hatchell went further: he thought the congestion greater than could be accounted for by drowning alone. Thus the jury were left by the doctors in a state of much uncertainty. His Lordship then commented on the demeanour of the prisoner on 6 September. The jury would consider whether that was due to genuine grief or was merely affected to avert suspicion. As to the sheet, it was for them to decide which of the Nangles was in error. Both seemed anxious to tell the truth; but it was very dark at the time, a fact which should also be kept in view with reference to the finding of the clothes. Patrick Nangle’s account of his being interrupted by Mr Kirwan at the inquest was corroborated by the Coroner. It was admitted that three cries from Ireland’s Eye were heard that evening about seven o’clock. If the screams heard by Larkin came from the Long Hole they must have come across the island, and consequently must have been heard by the prisoner. The credit of the five witnesses who heard these cries was unimpeached. If they were uttered by the deceased lady, what caused them? Undoubtedly, pressing and imminent danger of some kind. Were they the screams of a person seized by epilepsy, or were they due to pain or fear caused by another? The jury would consider whether the character of the cries was consistent with an attack of epilepsy to a person bathing. They would also consider whether this lady, an experienced bather and an expert swimmer, was swimming in two feet nine inches of water when she was seized with epilepsy and gave the screams described. It was impossible that she herself placed the sheet where it was found, as the rock was then covered by water. How came she upon that rock? Was it probable that the tide threw her on it and left her there? Again, did she ever in her life have an epileptic fit? Suspicion must not be confounded with evidence. But if they could not reconcile these facts with the prisoner’s innocence, they must not pass them over; if, on the other hand, they were not satisfied that Mrs Kirwan’s death was the result of violence, they would acquit him.
At seven o’clock the jury retired to consider their verdict. Returning in forty minutes, they intimated that they could not agree, and the Court adjourned till eleven o’clock. On its reassembling, however, the jury were no further forward, and it was proposed to lock them up all night and to take their verdict in the morning. They asked for a little more time, and wished to hear Dr Adams repeat his testimony, but the judge supposed that gentleman was then fast asleep; he gave them his own recollection of the doctor’s evidence: that death might have been caused by either simple or forcible drowning. The jury then said they were likely to agree, and in fifteen minutes arrived at a verdict of guilty. The Court adjourned.
When the Court met next day to pronounce sentence, Mr Butt moved that certain questions of law be reserved for the decision of the Court of Criminal Appeal,23 namely, whether the evidence of the prisoner having lived at Sandymount with a woman who called herself “Mrs Kirwan” was admissible: whether the verdict was founded on the testimony of Dr Adams, a witness for the defence; and whether the deposition of the prisoner at the inquest ought to have been admitted? The Court refused the application. Asked what he had to say why sentence of death should not be passed against him, the prisoner, “in a firm and perfectly calm voice”, made no fresh statement and merely repeated the facts known to everyone in court. Mr Justice Crampton said:
“I am sorry to interrupt you at this painful moment, but you must be well aware that your counsel entered into all these subjects. It is impossible for me now to go into the evidence.”
His Lordship then pronounced sentence of death, intimating his own concurrence and that of his learned brother in the rightness of the verdict, and pointing out that there was no hope of pardon on this side of the grave. The prisoner, again protesting his innocence, was removed under escort to Kilmainham Jail, and the Court rose.
The Official Report of the trial concludes: “By order of the Executive Government the sentence was commuted to transportation for life.” The result was achieved by the joint endeavours of the Rev. J. A. Malet, who produced a brochure entitled The Kirwan Case, and of J. Knight Boswell, a Dublin solicitor, who published a pamphlet on similar lines. Both tracts give an ex parte review of the evidence and contain a series of declarations by divers persons, more or less relevant to the issue, as to which it may be generally observed that such irresponsible pronouncements, not upon oath, are plainly of less value than statements sworn to in court. I have space but to glance at this new “evidence”.
The Kirwan Case crop includes Mrs Crowe, the mother of Mrs Kirwan, who said she was in constant touch with her daughter and that Mr Kirwan was always a most kind, affectionate husband. She makes no reference to the Sandymount establishment, and as regards her daughter’s health, condescends only upon sleeplessness; she does not mention fits. Her daughter was “very venturesome in the water, going into the deep parts of the sea, and continuing therein for a much longer period than other ladies”. Mrs Bentley said that she knew the deceased intimately. Mrs Kirwan became aware of the Kenny connection within a month of her marriage, and “exhibited no emotion on the subject”. Two years before, she told the declarant that she had a fit in presence of her husband. Two other ladies severally averred that Patrick Nangle had equivocated about the sheet, and had expressed an intention to “pinch” Mr Kirwan at the trial. There follows a certificate by ten Dublin physicians and surgeons, proceeding upon the “sworn testimony annexed”, that the appearances were “quite compatible with death caused by simple drowning or by seizure of a fit in the water”; and that they were “given to understand that Mrs Kirwan’s father died of a fit eight years ago”.24 The great Dr Taylor wrote on 20 December, 1852, denouncing the verdict: we shall hear his opinion presently. Anne Maher, Kirwan’s servant, said that two years before Mrs Kirwan had a fit in presence of her husband and one Kelly. Arthur Kelly said that he had been Kirwan’s “assistant” for twelve years; he assisted at two fits, one two years ago and another in June last, just before Mrs Kirwan left for Howth. Neither of these declarations were upon oath—Anne Maher could not write.25 An uncle and a cousin of the deceased said that she often complained of blood to the head and “confusion of ideas”; adding with delightful, if unconscious humour that she spoke in the highest praise of her husband’s conduct and “always appeared in the full and affluent enjoyment of comfort and respectability”. Mr Butt wrote to say that the epileptic theory was not thought of till the second day of the trial, when it was suggested by a medical witness, too late to call evidence in its support—as though he had not had an opportunity of consulting his own client! The remaining volunteers allege that Kirwan had nothing to do with choosing the wet grave, that the Crown expert’s measurements at the Long Hole were defective, that the acoustics of the island were other than as represented, and that Mrs Kirwan once told a servant, with reference to a little boy who came to the house enquiring for “dada”, “that it was Mr Kirwan’s son, and he had two or three more of them”. Here endeth The Kirwan Case.
Islands would seem to have exercised a baleful influence upon Mr Kirwan’s fortunes. Fatal, in any view of his behaviour, were the hours spent by him upon Ireland’s Eye; and now his Excellency the Earl of Eglinton, the Lord Lieutenant, whether dissenting from the verdict, or impressed by these declarations, or yielding merely to popular clamo
ur, commuted the sentence to penal servitude for life, and the convict was immured accordingly on Spike Island in Queenstown harbour.
In the other pamphlet, Mr Boswell discusses the controversial points of the case, and publishes among certain statements a declaration by Teresa Kenny. But the second “Mrs Kirwan” is disappointing: she was plainly in no mood for revelations. She very handsomely accepts sole responsibility for the liaison, of which she alleges the wife was all along aware, and says that in 1847 Mr Kirwan urged her to go to her brother in America, a proposition declined by her in the spirit of Ruth’s refusal to forsake Naomi. She was unable to bear witness at the trial, having cut her thumb. Since her protector’s arrest she and her children had suffered much persecution at the hands of the righteous. But what the testimony of Teresa lacks in sensation is amply atoned for by the statement that on 6th September there was upon the island another man, one John Gorman, who avouched “that Kirwan was as innocent of the murder as the child unborn”! Unfortunately, this person, having unbosomed himself to Mr Malet, absconded, alleging, with some show of reason, that “he was afraid of being implicated himself,” and no trace of him could be found. So the pamphlet is not enriched by his declaration which, like “an affidavit from a thunderstorm or a few words on oath from a heavy shower”, desiderated by a certain chancellor, was not forthcoming. Mr Boswell has a stronger hand to play in Dr Taylor. That forensic autocrat had contributed to the medical press an article, reprinted at length in the pamphlet. As this is not a medical journal and not all my readers are medical jurists, I do not propose to accompany Dr Taylor in his pathological excursus. Those professionally interested may read him for themselves. His conclusions are as follows:
“I assert as my opinion, from a full and unbiased examination of the medical evidence in this case, that so far as the appearances of the body are concerned, there is an entire absence of proof that death was the result of violence at the hands of another. Persons while bathing, or exposed to the chance of drowning, are often seized with fits which may prove suddenly fatal, although they may allow of a short struggle; the fit may arise from syncope, apoplexy, or epilepsy. Either of the last conditions would, in my opinion, reconcile all the medical circumstances of this remarkable case.”
While admitting the force of the moral and circumstantial evidence against the accused, Dr Taylor holds that, “looking at the unsatisfactory nature of the medical evidence of violent death, it would certainly have justified a verdict of Not Proven”.
The doctor, however, was not to have it all his own way. There was published by Professor Geoghegan the result of his examination of the same facts, which led him to a very different conclusion. The copy of this pamphlet now before me is interesting as having been presented by the author to Mr Smyly, QC, who conducted the prosecution. Why that learned counsel did not put the Professor in the box is an additional mystery. To me, a layman in such matters, Dr Geoghegan’s arguments upon the medical evidence seem much more cogent and convincing than those of Dr Taylor. His summing up is as follows:
“The preceding considerations, I think, suffice to indicate that the entire series of medical facts leads to the following conclusions:
1.
That the death of Mrs Kirwan was not the result of apoplexy, or of epilepsy, nor yet of epileptic or of suicidal drowning.
2.
That the combined conditions of the body (both external and internal) were incompatible with drowning, unattended by other violence.
3.
That the appearances observed may have been produced by strangulation alone, or combined with compression of the chest, or with partial smothering.
4.
That they are also consistent with a combination of the preceding mixed or simple process of strangulation, with drowning; the submersion not having been continuous from its commencement.”
That Dr Geoghegan was in the better position to form a judgement would appear in the following circumstances: he had been consulted by the Crown at an early stage of the case, had personally inspected the locus, and heard the whole trial, none of which advantages was enjoyed by Dr Taylor. Further, he ascertained from witnesses who had seen the body certain conditions not elicited in evidence. From observations made by him at the Long Hole, Dr Geoghegan believed that the deed was done at the landward side of the “body” rock, in shallow water; the presence of seaweed and gravel in the hair favoured that view, and there would be less chance of detection from wetting of the perpetrator’s clothes. “The arrangement of the deceased’s bathing-dress, and of the sheet beneath her, with the orderly position of the body, seem clearly to show that wherever death may have occurred, the corpse was placed subsequently on the rock.”
Actuated as I always am by a laudable desire to give the reader full value for his money, and believing that the opinion of a modern authority on forensic medicine might prove helpful, I consulted, unprofessionally, my friend Dr Devon, who was so good as to make a careful study of the whole phenomena, and to favour me with his conclusions. Of the competency of Dr Devon to pronounce upon the question, it would be impertinent to speak. His report is too long for quotation here, and I must be content to quote one pregnant paragraph:
“In this case it was suggested that deceased had an apoplectic stroke; but there was no evidence in the brain of any haemorrhage. Syncope was also put forward as a cause of death; but the appearances found pointed to death from asphyxia. Epilepsy was also advanced as a cause, with as little evidence to support it. Granting, however, that deceased fell into the water either from an epileptic or a fainting fit, and there was drowned, how could she have sustained the injuries she had received and be found lying on her back? Had she fallen forward against projecting rocks or stones, might she not have cut her face and breast and bruised her right side? Possibly; but if she fell forward and got injured and drowned, how did she fall backward on a sheet, with her clothes up under her armpits? I am unable to imagine any accidental or suicidal drowning in which the deceased would be found in the position and with the injuries of Mrs Kirwan. And how might it have occurred? If the sheet on which she was found lying had been put round her when she was alive, in some such way as it was put round her dead body before it was removed, she could easily have been submerged in shallow water. If she had been shoved in from behind, the injuries might have been received from the rocks or stones in the bed of the water. There was no evidence of throttling and there were no injuries on her back. The body seems to have been taken to the place in which it was found, and in the process the clothes might have been drawn up to the armpits. It was a simple murder, clumsily carried out. If the body had been left in the water there would have been less room for suspicion, but it is a common thing for people under emotional stress to get exhausted mentally and to behave with a degree of stupidity that is amazing.”
Who shall decide when the doctors disagree? Dr Taylor asks “Whether any amount of moral evidence can compensate for a deficiency of proof of the cause of death?” But though medical opinion be thus divided, some weight must surely attach to other facts and circumstances indicating foul play, hardly to be reconciled with death from natural causes. If so, the secret of the island would seem to be rather an open one after all, and like the song the Syrens sang, not beyond all conjecture.
A quarter of a century after the trial the following paragraph appeared in the Freeman’s Journal (3 February 1879):
AN OLD TRAGEDY REVIVED
More than twenty-five years ago, a man named Kirwan, who lived in Upper Merrion Street, and had official employment as a draughtsman, was convicted in the Courthouse, Green Street, of the murder of his wife at Ireland’s Eye, under circumstances of peculiar atrocity and horror. Sentence of death was pronounced; the gallows was prepared, the hangman retained, and the rope ready for its work; but at the last moment powerful influence of a very special character was successfully exerted, to rescue the culprit from the grasp of the executioner. Kirwan’s death sentence was commuted to penal ser
vitude for life, and after a short stay at Mountjoy Prison he was sent to Spike Island, where he spent nearly twenty-four years as a convict. Last week he was liberated, on condition that he should leave the country, and he has sailed, via Queenstown, for America. One who saw him just before his departure describes him as an aged and very respectable-looking gentleman, white-haired, bent, and feeble, and with nothing in his aspect or manner to suggest that he was guilty of the awful tragedy on Ireland’s Eye.
Some further particulars are furnished by Mr M’Donnell Bodkin, K C, in his recent account of the case, on the authority of the late Dr O’Keeffe, formerly prison doctor at Spike Island, who “accompanied Kirwan when, on his release, as the last prisoner on Spike Island (before it was turned to its present use), he proceeded to Liverpool, whence he sailed to America, with the intention of joining and marrying the mother of his children, whose name figured so prominently at his trial”. A reunion sufficiently remarkable, whatever view you take of the mystery. The local tradition that a venerable and flowing-bearded stranger, who some years afterwards visited Ireland’s Eye and remained wrapped in contemplation of the Long Hole, was Mr Kirwan, surveying the scene of his adventure, may be dismissed as legendary.
THE CASE OF THE MOVIE MURDER
(William Desmond Taylor, 1922)
Erle Stanley Gardner
Hollywood was rocked in 1922 when the film director William Desmond Taylor was shot dead in his bungalow. High-profile figures in the entertainment industry were implicated, and the newspapers printed a swirl of wild and unsubstantiated “facts”. Amid all the hoopla, the case was never definitively brought to a close. Taylor’s mysterious murder sent tremors through the Hollywood community and continues to intrigue movie and mystery buffs to this day. The tale caught the attention of the American detective-story writer Erle Stanley Gardner (1889–1970), who wrote this account for one of the pulp magazines that flourished in the 1940s. Gardner sold more than 700 works of fiction, including 127 novels (82 of them featuring his fighting lawyer, the global icon Perry Mason). It is estimated that some 325 million of Gardner’s books have been distributed globally, making him one of history’s all-time bestselling mystery writers. At the height of his popularity (in the mid-1960s), his novels were being sold at an average of 26,000 copies a day.
The Mammoth Book of Unsolved Crimes Page 44