He could not bear to look at the jury. Their faces told him how desperately thin were his chances. All seemed to have made up their minds. They were going to listen, because it was the custom and their duty, but not even the lanky man seemed to have any doubt left as to the issue.
Heppenstall began to speak in a quiet, pleasant conversational tone, and his manner suggested that he was confiding some interesting secret to old and well-trusted friends. Taking the jury into his confidence: that was it. Helping them to cope with their heavy duties, particularly helping them to avoid being imposed on by the representatives of the Crown…
‘May it please Your Lordship, members of the jury,’ he began, after a good deal of play with his eyeglass, ‘I now have an opportunity of putting before you the case for my client, Mr Charles Swinburn. I need not remind you of the terrible position which he occupies. His all is at stake: his happiness, everything that he has or is, his very life itself. You cannot, and I know you will not, deal lightly with so weighty a matter. You will, I know, consider all that can be urged on his side as well as the evidence which seems to be against him. For, as his lordship will tell you, you have a double duty: a duty to him as well as a duty to the State. That you will do your duty to the very best of your ability, no one in this court doubts.
‘Now you are all familiar with the phrase which tells you that you must give the accused the benefit of any doubt which may be in your mind as to his guilt, and, subject to his lordship’s correction, I shall ask you to consider for a moment just what that phrase really means. It does not mean that you cannot convict unless there is absolute certainty of guilt – there seldom is that absolute certainty which juries would no doubt like. No, it means something much more commonplace than that. It simply means that you must exercise your powers of judgement on the question of the defendant’s innocence or guilt in just the same way that you exercise them in the ordinary affairs of daily life.
‘Let me put it to you like this. Suppose someone claims something from you which would involve a considerable sacrifice. Naturally, you investigate that claim to satisfy yourself whether it is or is not valid. The proof of its validity may not be absolute, but if you are reasonably satisfied that it is just, you will make the sacrifice; if not, you won’t. Now it is just the same in the present case. If you are so satisfied that the accused is guilty that on similar evidence you would make a considerable sacrifice, then you will bring in a verdict of guilty. But if you feel that the evidence would not be sufficient to induce you to make the sacrifice, then you will bring in a verdict of not guilty.
‘Now there is one definite case which, I put to you, must necessarily involve sufficient doubt of the accused’s guilt to require an acquittal, and that is the case in which all the facts adduced by the prosecution can be explained equally well by assuming the guilt of some person other than the accused. In other words, the case that the police have got hold of the wrong man; and that, in a nutshell, is the defence I am going to put up in this case. I now hope to show you that while the evidence to which you have listened may or may not be proof of guilt, that guilt is not the guilt of my client. If I succeed in doing so, I shall be able, with every confidence, to ask for a verdict of acquittal at your hands.’
Charles’s heart had begun to beat painfully. Was this really so? Was there a defence after all? If Heppenstall could prove anything like this, he was saved! Charles felt the tension almost more than he could endure. He clenched his hands till the knuckles showed white.
‘Now I admit in the fullest way,’ Heppenstall went on, ‘that the case against my client looks very black. It could not have been conducted by my learned friend Sir Richard Brander and look otherwise. Fortunately for my client, however, that is a superficial appearance only. Its black appearance is caused by placing one arbitrary interpretation on the facts. Fortunately there are others – two others – entirely compatible with his innocence. It is my duty as well as my privilege to put them before you.
‘Of all the evidence put forward, you will see as clearly as I do myself, that only one item is really conclusive of the accused’s guilt. If he really went into a chemist’s shop, and by impersonation and forgery obtained potassium cyanide, for the innocent use of which he is unable to account, then I say, let him hang. If I believed he had done that I would not have appeared here to defend him. But this evidence, I repeat, is the only evidence which is conclusive. All the rest can be explained equally well on the assumption of the guilt of another person. I’ll show you that in detail presently. Let me first concentrate on this item: did the accused buy that poison or did he not?
‘Now someone bought it. Moreover, someone bought it through trickery and fraud. Mr Peabody’s evidence, coupled with that of Mr Francis Carswell, is perfectly clear upon that point. The question which you have to answer is simply this: was the man who bought the poison the prisoner, or was it some other person?
‘You will tell me that Mr Peabody has testified definitely that it was the prisoner. I suggest to you that Mr Peabody was mistaken. Now in this I am not for a moment questioning Mr Peabody’s bona fides. You saw him in the box and so did I, and I’m sure we’re all agreed that he spoke as a perfectly honest man. But Mr Peabody suffers from the same handicap that you and I do: he is human. Like the rest of us, he can make honest mistakes. Now will you please consider the conditions under which this identification was made.
‘Firstly, Mr Peabody’s sight is not of the best. Your own observation of his glasses will tell you that. They have very thick lenses, showing short sight. Secondly, Mr Peabody’s shop is a dark shop. He told you that himself, and you have had overwhelming evidence upon the point. Thirdly, the day on which this poison was bought was a dark day. You have heard that at the time the purchase was made the sky was heavily overcast. Fourthly, the purchaser stood with his back to what light there was. Members of the jury, please picture this in your minds: a short-sighted man in a dark shop on a dark day looking at a customer who stands with his back to the light! You must realize, as I do, that it was physically impossible for a satisfactory identification to be made under those conditions. As a matter of fact it’s not a question of whether we realize it or not. There is actual proof that Mr Peabody did not in point of fact observe him closely. He did not know – you heard him say so – he did not know what kind of hat the man was wearing. He did not know whether or not he wore spectacles, or gloves, or rings. He didn’t know because he hadn’t observed him closely; and he didn’t observe him closely because it was too dark. Doesn’t that come out quite unmistakably from his evidence? Of course it does. I say without hesitation that when the unknown left the shop, Mr Peabody did not retain a clear conception of his appearance. Why? Because he had never received it.
‘Now you must not overlook another very important point. The total time the unknown was in the shop was from three to five minutes: say, four minutes. Now during that four minutes Mr Peabody was engaged in several operations during which he could not have been looking at his customer. He was examining the visiting card. He was examining the four envelopes which were presented as a forged identification. He had to retire from the shop to get the poison, and while he was away he tells us he stopped to look up Carswell’s name in the telephone directory. How long, I ask you, was he actually looking at his visitor? It could not have been more than for a minute, or two minutes at the very outside.
‘Now consider! How much time elapsed between that one or two minutes’ interview in the semi-darkness and the identification at Cold Pickerby? Mr Peabody has told you. No less than sixty-nine days; nearly ten weeks! Members of the jury’ – Heppenstall leaned forward and spoke very persuasively – ‘you don’t really believe that Mr. Peabody could be sure under such conditions. You know as well as I that he could be nothing of the kind. It’s not physically possible.’
Heppenstall stood upright again and made a little pause before continuing. ‘Why then, you will ask me, does Mr Peabody, whose motives are admittedly beyond question
, why does he believe he can make the identification? I’ll tell you. It’s due to a universal trait of human nature. It’s due to the fact that we all, you and I as well as Mr Peabody, tend to see what we expect to see. Consider how this identification was made.
‘Mr Peabody was interviewed in London by the police, who asked him to go down to Cold Pickerby to see whether he could identify the man who had been in his shop. I am not accusing the police of using improper methods; there was nothing else they could do. But the fact remains that Mr Peabody went down expecting to see the man. He saw a man who seemed like him. He took it subconsciously that this was the man in question. It was only human.
‘Now, members of the jury, please remember that you’re not being asked to give a mere opinion on this identification. You’re being asked to hang a man on it. I put it to you that you can’t do it. There’s a great deal more here than a reasonable doubt. For a triviality you might accept such evidence. For a man’s life, no! There’s a doubt here so huge that not to give the benefit of it would be – I say it with all respect – it would be a responsibility neither you nor anyone else dare face.
‘Particularly if the man who bought the poison was like the accused. Have you thought of that, members of the jury? If you haven’t, think of it. You’ve got to have no reasonable doubts. I tell you, no one would hang a cat on such evidence, and you know it!
‘Now I am making no accusation of any kind whatever, but there were two other persons, either of whom might easily have been made up to resemble my client, and either of whom might, for all the evidence that has been put before you to the contrary, have committed this murder. You know to whom I am referring: Mr Peter Morley and the late John Weatherup. I am very far indeed from saying either of them did so, but you have to go on the evidence alone, and the evidence points equally to the accused and to those two men. You have been told nothing – I say it with the utmost deliberation – you have been told nothing to enable you to decide which of the three it was.
‘But there’s another point, a highly important point, to which I would direct your most earnest attention. What proof is there that the purchaser of this poison was any one of the three I have mentioned? What proof is there that he had any connexion whatever with the murder? Someone purchased poison – how do you know that he used it to kill Andrew Crowther, or that he even knew of Andrew Crowther’s existence? How, for example, do you know that he didn’t use it to commit suicide?
‘I submit that on the evidence put before you, you have no reason whatever to connect the purchase of the cyanide with this murder. There is only Mr Peabody’s own testimony, and I have shown you that, without questioning Mr Peabody’s bona fides, in the nature of the case that testimony could not be convincing.
‘So much for the identity of the purchaser of the cyanide. My case here is that this purchaser has definitely not been identified with my client: more, that there is no real reason whatever to suppose it was my client. Now let us glance very briefly at the remainder of the evidence brought against him.
‘I do not propose to say anything about the handwriting of the purchaser as recorded in the poison book. It has been examined by two experts, and as you know, one of them says it is the handwriting of the accused and the other says it isn’t. Now, members of the jury, this doesn’t mean that one of these experts is a truthful man and the other a liar. They are both, I’m quite sure, perfectly honourable men. What it means is that the question they were asked is a difficult question and that there is no real way of reaching certainty in the matter. You must have noticed that neither of them was dogmatic, each distinctly pointing out that he was giving an opinion only. I put it to you that the only possible conclusion that you can reach from their evidence is that grave doubt exists as to whether or not the accused made the entry.
‘Another piece of utterly unconvincing evidence was that of Mrs Shearman and the clerk from the Jupiter. These two persons, while admittedly quite honest and well intentioned, actually profess to be able to tell you my client’s thoughts! If you are acquainted with a person and know his moods, you can say with reasonable certainty when he is excited or upset. But my client was a stranger to these two persons. How could they possibly tell whether his manner was abnormal when they didn’t know what his normal manner was like? And why shouldn’t he have been anxious to get his letters? Wasn’t his business in a bad way? Wasn’t he keenly interested in its welfare? I submit that to found any opinion on such vague generalities is impossible, and I ask you to dismiss this so-called evidence as irrelevant.’
Hope, incredulous hope, was once again buoying up Charles. He had thought Heppenstall wasn’t taking any trouble with the case and that he wasn’t being worth his fee. Now Charles saw that nothing he could pay could discharge his debt to Heppenstall. Heppenstall was going to save his life: that was all he was going to do. The intensity of his concentration on Heppenstall amounted to actual pain.
The speech unquestionably was having its effect on the jury. Except in the case of the foreman that dreadful expression of a mind made up had gone from their faces. They now looked, most of them, open to conviction. Two or three looked doubtful and puzzled. Charles hugged himself. Things indeed were going well.
‘Now,’ went on the persuasive voice, ‘the prosecution went to a great deal of trouble to prove that the accused had a motive for murdering his uncle. They might have saved it all. How did they get to know about this motive in the first instance? Was it from police inquiries or clever detective work? It was not. It was from the accused himself. In his original statement which you heard read, he volunteered it. He admitted in the fullest way that he had an adequate motive for the crime. But that’s a very different thing to saying he committed it.
‘I’ll prove that for you in a few words. In addition to the accused, four other people had a similar motive for the crime. Mr Peter Morley had an even more powerful motive. Both he and the accused had asked the deceased for help, but whereas the accused got the help, Mr Peter Morley did not. Therefore his motive was actually greater than that of the accused. Mrs Pollifex and Miss Pollifex and the late John Weatherup, the butler, had also a motive for the murder. They stood to gain by Mr Andrew Crowther’s death, and though they didn’t stand to gain so much as the other two, for all we know to the contrary any one of them may have been in greater need.
‘Now here are five persons who had a motive for murdering the deceased. They can’t all have done it. Therefore some of them – four of them if not all five – are innocent. My point is that those four who are innocent had, equally with the guilty one, a motive for the crime. Therefore motive alone is no argument for guilt, and I put it to you that you may dismiss the question of motive from your thoughts. It cuts in too many ways. Let us therefore come to the next point: the administration of a poisoned pill.’
Mr Heppenstall here made an effective little pause. He stooped to consult his brief, had a perfect orgy of manipulation of his eyeglass, glanced in a friendly way at the jury, and resumed:
‘Now on this point I confess to some surprise at the attitude of my learned friend, the leader of the prosecution. It is not like him to put up such an entirely baseless piece of assertion as that the accused put the poison into a pill and administered it to his uncle. That is a fundamental of the case; in fact I might fairly call it the fundamental of the case. I’m sure you were as much surprised as I was to find that on this fundamental point not one single iota of evidence was given. What does my learned friend say about it? I quote from his speech. “It must have been obvious to him – that is, the accused – that if poison could be inserted into a pill and if that poisoned pill could be introduced into Andrew Crowther’s bottle, he would sooner or later take that pill and die.” There,’ cried Heppenstall in ringing tones and with a striking gesture, ‘there is what you are asked to convict this man on! The mention of a possibility, without the slightest supporting evidence! For though my learned friend went on to say that he would prove that the poison was insert
ed into one of these pills and the pill introduced into the deceased’s bottle, and that the deceased took that pill and died as the result – though he said he could prove all these, I submit that he did not do so. He did not prove a single one of these statements.
‘Because please remember that the fact that the deceased may have taken a poisoned pill does not in any way connect my client with his death. Members of the jury, I ask you would you convict a dog on such evidence? To take a human life on it is unthinkable.
‘It is argued that because the accused was alone with the deceased after dinner on the 25th of August, that he must have put the poisoned pill into the deceased’s bottle, or changed the deceased’s bottle for another containing the poisoned pill. I ask you to examine this argument and I ask you to disregard it for two reasons. In the first place it is logically unsound. If it were sound it would follow that everyone who had been alone with the deceased must have put a poisoned pill into his bottle – an absurd conclusion. In the second place, the accused was not the only one to be alone with the deceased. You heard in evidence that on the night Mr Peter Morley and Mr Crosby dined at The Moat, Mr Crosby left the dining-room to get papers, leaving Mr Morley alone with the deceased. Why not argue, therefore, that Mr Morley put in the pill? And we may be certain from the nature of the case that the butler, John Weatherup, and the other inmates of the house, Mrs and Miss Pollifex, were also, or could have been, alone with the deceased after his meals. That, however, is no reason for supposing them to be guilty of his murder. Here again I put it to you that you cannot say that my client was the guilty person, rather than one of these other persons.
‘My learned friend tells us that the spilling of the wine is an argument for supposing my client changed the bottles. It might conceivably tend in that direction if my learned friend had proved that the accused spilled it. He did not do so. No evidence connecting my client with that spilled wine has been put before you. How much more likely that the wine should have been upset by the deceased, who was old and feeble and in poor health, and whose hand was probably pretty shaky? For the matter of that, how do you know that the wine was not spilled by Weatherup?
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