Trial and Error

by Anthony Berkeley

  There was, for instance, the question why he had first of all denied having been in Richmond at all on the fatal evening. This denial, as Mr Todhunter and his advisers knew, had produced an exceedingly bad effect on the police; for Palmer’s story that he had been at home had been supported originally by his wife. Only when incontrovertible evidence was put to him that he had been positively identified at the Norwood house did Palmer retract this fiction and admit his presence; and he had added that his wife had supported his story upon instructions from himself. To the police this naturally appeared in the light of a conspiracy and pointed overwhelmingly to Palmer’s guilt.

  It was not possible to question Mrs Palmer in court upon her part in this conspiracy since this would be tantamount to requiring her to give evidence against her husband, nor was she charged as an accessory after the fact. Palmer himself however was pressed on the point; and admitted that first of all he had denied being at Richmond in order to spare his wife pain, since she knew of his interest in Miss Norwood and it had made her unhappy; and secondly, when asked where he was if not at Richmond, he had lost his head and said he was at home without realising that this would involve his wife in supporting or denying his statement.

  Mr Todhunter, however, when he heard of this explanation, was sceptical. He had expressly asked Palmer whether his wife would be prepared to back up his statement, and Palmer had replied that she would. Obviously there had been a conspiracy between them, arranged probably between Palmer’s two visits to the Farroway flat; and if the evidence of the Norwood servants had not burst the balloon, both husband and wife would have stuck to the story. This looked bad.

  Then again there was the still more difficult question of why Palmer should have brought his revolver round to his sister-in-law’s flat early that morning, directly the news of the murder became known. Was this the action of an innocent man who feared he might be wrongly accused, or was it the action of guilt? Palmer sullenly maintained that it was the former; fearing that his quarrel with the dead woman might have been overheard, he had thought that it might be better that no revolver should be found in his house. Pressed as to how it was that the revolver showed signs of having been recently fired, Palmer rather unconvincingly denied that it had showed anything of the sort. His counsel tried hard in re-examination to smooth these difficulties out, but a bad impression had been made and Palmer’s demeanour did nothing to help matters.

  On top of all this, the judge, for some reason best known to himself, showed himself definitely hostile; and when he summed up, although his words were scrupulously fair, his own opinion could be plainly discerned between them. Moreover he commented, as indeed he was quite entitled to do, on the unfortunate absence in the flesh of Farroway himself, whose evidence, owing to his continued ill-health had had to be taken in the form of an affidavit. Farroway, observed the judge, might have been able to clear up several points that remained obscure. As he had not appeared to do so, the jury must form their own opinions on the points in question. And the implication was only too plain that, to the judge’s mind, Farroway’s evidence under cross-examination would have been definitely damaging to the prisoner; and its absence was due to a family conspiracy to protect him.

  The jury were out nearly five hours, and they were the five longest hours Mr Todhunter had ever known. When at last they returned, there was hardly a person in court who had not anticipated the verdict of “Guilty” which they returned.

  “And what,” rather shrilly demanded Mr Todhunter of Sir Ernest Prettiboy as they followed the others outside, “what the hell do we do now?”

  “Hush, hush,” soothed Sir Ernest. “We’ll put your case forward. I knew they were wrong. You’ll see. It’ll be all right. They can’t hang him.”

  3

  It seemed that the home secretary disagreed with Sir Ernest.

  In due course Palmer’s appeal was heard, on the grounds that the verdict had been against the weight of evidence. It was dismissed, very solemnly, by three learned judges.

  Then a petition was drawn up, couched in ancient and magnificent language, and here it was definitely stated that Lawrence Butterfield Todhunter had already confessed to being responsible for the death of the said Jean Norwood and was prepared to submit to all necessary interrogations, pains and penalties for his deed, in view of which fact and the grave doubts at least which it cast upon the guilt of the prisoner Vincent Palmer, the home secretary’s petitioner did very humbly beg and pray that a stay of execution be granted while the statement of the said Lawrence Butterfield Todhunter was examined by the law officers of the Crown (the said petitioners knowing very well that once a stay of execution is granted the execution is never carried out). To all of this the home secretary replied, curtly, that the prisoner Vincent Palmer had been properly condemned by a jury capable of estimating the facts, that he had consulted with the learned judge who had heard the appeal, and that as a result he saw no reason to interfere with the jury’s verdict.

  This news had to be broken to Mr Todhunter with such circumspection and care that it was two whole hours before he realised that the home secretary considered him no more than a deliberate and rather childish liar.

  “Very well,” said Mr Todhunter with creditable coolness, “On the day they excuse Palmer I will shoot myself on the steps of the Home Office.”

  “Gad, we’ll tell the papers that,” cried Sir Ernest Prettiboy with enthusiasm. “Nothing like a bit of publicity in the right direction.”

  Sir Ernest was as good as his word. In consequence every popular newspaper the next morning carried a banner headline to this effect, while the more solid journals referred to it with some disgust on an unimportant page. It had interested Mr Todhunter to observe that the popular press supported him to a lord, while the other newspapers, although inclined to think that this was a case in which the home secretary might perhaps exercise his prerogative of mercy, professed no doubt concerning the prisoner’s guilt.

  The banner headlines had no effect. The home secretary was a dry and legal man, full of precedents and the letter of the law, and a popular agitation was quite enough to stiffen him in any unpopular course of action. If the home secretary could manage it, Vincent Palmer should hang.

  “We’ll save him yet. I swear we’ll save him,” fumed Sir Ernest. “My God, if we’d only got a man at the Home Office instead of this bundle of old parchment tied up with red tape. The very worst home secretary there’s been for a century, for our purpose. But we’re not done yet. There’s still old Powell-Hancock.”

  Mr Chitterwick nodded brightly. Mr Todhunter looked doubtful. Sir Arthur Powell-Hancock was another of Sir Ernest’s “strings.”

  Mr Todhunter had indeed been astonished at the reliance which Sir Ernest Prettiboy placed on his “strings,” as Mr Todhunter termed them to himself. One would have said that Sir Ernest was a man of fairly definite purpose and direct action, but it seemed that according to the rules of the game no one must ever do anything himself. Somebody else always had to be approached, and the more circuitously, the better, to do it for one. These persons Sir Ernest would refer to as “a string to pull.” Old This could pull a string with the king’s proctor, old That was at school with the attorney general, old the Other knew a second cousin of the home secretary’s wife and might be a useful string. Everything must be done on personal grounds, never on the rights or wrongs of the actual case. Sir Ernest knew all these important persons himself, and apparently quite well; but he seemed to think that the home secretary’s decision was much more likely to be influenced by an elderly aunt of the permanent secretary’s, over a tea table in Bayswater, than by a discussion on the justice of hanging an innocent man in the cold formality of the home secretary’s own office. It amazed Mr Todhunter still more that the solicitors, and indeed everyone who might be expected to know the ropes, not merely shared this view but seemed to think that no other view was possible.

  Mr Chitterwick, with whom Mr Todhunter discussed this phenomenon, knew bett
er and tried to explain the inert mass of unimaginative bureaucratic dead weight against which any reform or even any measure of plain humanity had to strive.

  Sir Arthur Powell-Hancock was Sir Ernest’s parliamentary “string.” Mr Todhunter’s amazement had been deepened on finding that there was a disposition to treat the hanging of Vincent Palmer as a political question. Members of Parliament who supported the government were, it seemed, on the whole disposed to back the home secretary and execute Palmer; members of the opposition professed to regard Mr Todhunter’s story as true, or at any rate worthy of examination, and accused the government of persecution, injustice and, probably, simony; while the News Chronicle, in a thoughtful, leader, tried to prove that the civil war just then raging in Spain was entirely due to the government’s malicious intention to hang an innocent man.

  Sir Arthur Powell-Hancock, although a supporter of the government, had almost undertaken to raise the question of the execution in the House of Commons. (Mr Todhunter gathered that it was expected to win him over finally through some arguments concerning the removal of the tolls on a bridge in his constituency, which did not at first sight appear very relevant but in which Sir Ernest seemed to have considerable faith.)

  Exactly four days before Vincent Palmer was due to die Sir Arthur at last succumbed to the argument of the toll bridge and formally gave notice of his intention to raise the question on the adjournment or whatever it is that members do raise questions on; Mr Todhunter was a little bewildered on the point.

  Mr Todhunter was indeed a little bewildered altogether during these two weeks. The matter seemed to have been taken out of his hands completely. Although the principal actor, he was to play his part now, it seemed, entirely off stage. Sir Ernest Prettiboy spoke for him, acted for him, agitated for him and almost ate his meals for him. In fact Sir Ernest strongly advised Mr Todhunter to retire to his bed and stay there, for he could do nothing more to help except by remaining alive. On the day that Sir Arthur tabled his motion Mr Todhunter took this advice—after a final visit to Maida Vale, a last interview with Mrs Farroway, whose distress was now beginning to show through her self-imposed front of calm confidence, and a last desperate entreaty to her to do nothing, say nothing and generally keep out of things until 6 a.m. on the day that Vincent Palmer was to die. After that hour, said Mr Todhunter in some despair, anybody could do anything so far as he was concerned.

  4

  The report of the proceedings in the House of Commons was given to Mr Todhunter in his bed that evening by Mr Chitterwick, who attended in person, and by the indefatigable Sir Ernest Prettiboy, who, having thrown all precedent and procedure to the winds, was scandalising his professional colleagues more and more every day.

  Sir Arthur Powell-Hancock rose, in a somewhat apathetic House, to raise the question of Palmer’s execution on the motion that the House should go into Committee of Supply. Roughly, members were divided into five groups. There were those who regarded the question as a political one and intended to support the home secretary in his refusal to intervene, and there were, of course, those less tape-bound members who honestly believed in the infallibility of trial by jury. On the other side, supporting Sir Arthur Powell-Hancock, there were those few members who believed Mr Todhunter’s story; there were the members of the opposition who were politically minded; and finally there was a large body of opinion which was seriously disturbed by doubts as to Palmer’s guilt and considered that there could be at any rate no harm in sparing Palmer’s life in order to review Mr Todhunter’s confession, whether they had to keep the fellow in prison for the rest of his life or not. It was on this last group that Sir Ernest Prettiboy chiefly relied, and it was towards increasing their numbers that his ardent lobbying had been mostly directed.

  Not even Sir Ernest’s eloquence, however, nor the fiery articles that had appeared in the press for or against Palmer had done very much to rouse enthusiasm on either side; and Sir Arthur’s rather dull speech did not help to increase it. The debate dragged on and gradually developed into an academic discussion from which it was hard to realise that a man’s life could be at stake. Indeed about the best help that Palmer received was from the home secretary himself, who spoke with such inhumanity and arid lack of any of the broader warmth or understanding as to alienate even some of his own supporters.

  In spite of this small profit to Palmer’s cause, it seemed certain, however, that the division must go against him, when Sir Ernest played his trump card. It was an unexpected card, and its existence had been unknown even to Sir Arthur Powell-Hancock himself; nor did Sir Ernest play it until quite sure that the debate was going definitely against him. Then a note was brought by an attendant to Sir Arthur, who stared at it in perplexity for some moments and then fumbled for the Speaker’s eye.

  Catching it, he rose and said:

  “I have just received a note. Its purport is not altogether clear, but I understand that a—hum!—a civil action for murder is actually being brought, or entered, against this Mr—hum!—Lawrence Todhunter. A—hum!—a civil action for murder. My legal friends may understand better than I do what that exactly means. But if any action for murder is being brought in the courts against this gentleman—that is, for the same murder under which Vincent Palmer now lies condemned, I think I can hardly be wrong in suggesting that it would be the wish of the House that the execution of Palmer should be delayed at least until the outcome of this trial—if ‘trial’ is the correct term—has been reached.”

  Sheer bewilderment, in fact, had prevented Sir Arthur from being as prosy as he preferred, and, on the division being taken at once, it was announced that the motion respiting Vincent Palmer had been carried by the narrow majority of a hundred and twenty-six to a hundred and seven.

  “My God!” said Mr Todhunter and ate a grape.

  CHAPTER XIV

  Mr Todhunter had found himself caught up into great issues. His actions had been discussed in Parliament; precedents had been created in his name; and now he found himself the centre of an almost unheard-of legal crisis. It gave him a curious and irksome feeling of impotence to find that though now the centre of these great and controversial activities, he could no more direct them than he could direct the course of the moon round the earth: he was the centre only, fixed, immovable—and bed was about the best place for him.

  The notion of a private prosecution for murder was perhaps the most brilliant flash of genius in all Sir Ernest Prettiboy’s brilliant career. The course was, in point of fact, not unprecedented, but it took a legal genius to realise that the machinery for a resuscitation of this curious civil right was still in perfect working order.

  Briefly, the essence of the matter is that although, in all criminal cases, it is the Crown which is almost invariably named as prosecutor and has indeed in theory the prerogative of acting in this capacity, in practice prosecution for minor criminal offences is almost always undertaken by the private person who has suffered damage, acting, of course, in conjunction with the police.

  “But in this case, my boy,” expounded Sir Ernest jovially, “the police not only won’t help; if they can, they’ll jolly well hinder. And why? Because they’ve already prosecuted their own candidate for the rope, and to help indict another would only be to make them, as well as the original conviction, look silly. Besides, they’re still convinced they’ve got the right man.”

  “But this isn’t a minor case,” objected Mr Todhunter, who liked to get one thing clear at a time.

  “You’re right it isn’t. By the way, we’re a wily lot, aren’t we? By custom and so forth we’ve gradually put the responsibility for the repression of minor crime onto the shoulders of the injured parties themselves. Saves the authorities such a lot of trouble, that does. It’s a practice peculiar to this country. It would be.”

  “Yes, but murder isn’t a minor crime.”

  “No, but if they allow it in minor offences, they must in major ones too; though of course it’s very rarely done when the authorities them
selves aren’t willing to act. The private prosecutor has to put up the dibs himself, you see, and there’s precious few of us who wouldn’t let a criminal get away with anything he likes so long as we don’t have to foot any bill for putting him in gaol.”

  “But you said,” Mr Todhunter pointed out patiently, “that in such cases it’s the injured party who prosecutes. In a case of murder that can hardly apply, can it? I mean, the person who suffered the damage is hardly in a position to prosecute, being dead.”

  “Oh, it needn’t always be the injured party,” returned Sir Ernest glibly. “Haven’t you ever heard of a common informer? That’s what a bloke is called who prosecutes in any case of felony or misdemeanour in which he himself has suffered no damage.”

  “Then the person who prosecutes me will be a common informer?” suggested Mr Todhunter with acumen.

  “Not a bit of it. A common informer prosecutes in the hope and for the purpose of obtaining for himself the reward, pain or penalty prescribed for the offence in question, or a goodish lump of it, or for any other reason working to his own advantage, such as turning king’s evidence.”

  “Then what will the person who prosecutes me be called?” demanded Mr Todhunter in despair.

  “The prosecutor,” replied Sir Ernest simply. “He will in fact be usurping the functions of the Crown, and he’ll have a hurdle or two to jump before he’ll be allowed to do it too.”

  “Hurdle?”

  “Yes. There’ll be the grand jury to be argued into returning a true bill against you, the magistrates to be persuaded into committing you, and goodness knows what other merry little obstructions that the hostile authorities won’t be able to devise.”