Edward Du Vernet felt himself drowning in the emotion of his colleague’s address. He knew exactly what Hartley Dewart had done: without actually using the phrase “unwritten law,” Dewart had made an implicit appeal to the American doctrine that said a murder was justified when committed in defence of a woman’s honour. In lawless American cities and on the gunslinging frontier, the idea that a man was justified in avenging the seduction of a woman for whom he was responsible had proved an effective legal defence. Women, as the weaker sex, required a man’s protection, according to this notion, and if a man killed an evil seducer, the latter only had himself to blame. In the American West, several men had beaten murder raps by invoking this “unwritten law” as a defence of their actions in shooting a sister’s, wife’s, or daughter’s lover. The notion had crept north, and courts in British Columbia were also sympathetic to the idea that a man who tried to steal another’s wife “deserved to die,” and the man who killed him was simply doing what any “real man” would do. In a 1906 case in Vancouver, a man called Charles Johnson was found near the dead body of his lodger, yelling, according to a witness, that he would “learn somebody to come around to try and fuck his wife.” Johnson was acquitted of murder.
But vigilante justice was not a concept that carried weight in central Canada—in fact, it is unlikely that Toronto’s lawyers even knew much about judicial rulings from the other side of the Rockies. Moreover, the idea that a killing might be justified when an individual’s honour was in jeopardy only came into play when the killer was a man. It is unlikely that it had ever been used in a case like Carrie’s, where the female victim of the attempted seduction had later turned a gun on her seducer. Carrie might be just a frightened eighteen-year-old, but her actions did not fit the “weaker sex” stereotype.
Du Vernet had watched the forcefulness of Dewart’s fanciful oratory overwhelm Chief Justice Mulock and the packed and sympathetic audience. Yet the Crown prosecutor had raised no objections: Dewart’s address had been gripping. Du Vernet’s heart must have sunk. He knew that the prosecution case was far more firmly grounded in facts and law than Dewart’s heated rhetoric, but it lacked the passion: his own summing-up would sound Gradgrindishly pedantic. In the prisoner’s dock, Carrie Davies’s huddled figure reinforced her lawyer’s brilliant depiction of her as a helpless victim, fighting with the same courage as the boys in France. Her very passivity bespoke an innocent victim, although she certainly had not been passive when she pulled the trigger. Had her lawyer told her to keep dabbing at her eyes like that?
All the jury could see was a frightened girl who had faced a terrifying, brutal attacker—although this image was a distortion of the story that she herself had told the previous day. Could he persuade these twelve stolid Canadians to see Massey’s death from a different point of view? Could he pull them out of the emotional tsunami in which Dewart had engulfed them and explain that there was no provision in Canadian law to excuse a cold-blooded killing with no immediate provocation? Could he remind them that a slimly built man in galoshes who had just exchanged a cheery word with a newsboy was not the moral equivalent of a German soldier who bayonetted babies? Could he make the jurors identify with Bert Massey, family man, rather than with Carrie Davies, helpless immigrant?
Du Vernet rose, walked over to the jury, adjusted his glasses, and began to speak in a quiet, reasonable tone. “There is nobody in this court—bench, lawyers, or jury—whose sympathy does not go out to this young girl.” However, he went on, sympathy should not be allowed to interfere with the course of justice. Canadians should be proud that they live in a country where men’s differences are not settled with pistols. “How many men and husbands have suffered, but they have let the law deal with the offender. If they did not, where would we stop? It is very necessary for you to get at the truth and justice of this case. You are the judges of the facts. My only duty is to assist you in this difficult case. I have endeavoured simply to point out what the law says and what might be an excuse to reduce the charge. When human life is taken, it is the duty of the country to see who is responsible. That must be done to the satisfaction of the jury. If there is any reasonable doubt, it must be given to the prisoner.
“My learned friend has read you nothing that suggests killing can take place in this way and no offence be committed. You are the makers of the law, and hundreds of homes might be demolished if the bars were let down. Has there been any lack of sympathy in this court?
“The killing of a defenceless man who is not making an assault, but is on the street, not armed, would come within the definition of culpable homicide.”
It was hard for the lawyer to tell if he was making any headway with the jury. The twelve men listened carefully, occasionally glancing over at Carrie as if to measure whether the prosecution’s story fit better than her lawyer’s.
Du Vernet began the slow process of undermining Dewart’s version. “My learned friend has made a fierce attack on this man Massey. The Crown is not here to justify his conduct. If what the girl says is true, many men have been punished in this court for what the girl said was done to her.
“There was not a suggestion of improper conduct until Friday. They had encouraged the girl to go to church and increased her wages from time to time. Mr. Massey is not here. If this offence was committed, this man would have got six months.” Instead, Du Vernet insisted, the jury was hearing only one side of the story: Carrie’s. “The other side is not here to answer the attacks made upon him.” Moreover, Hartley Dewart’s defence had been over the top in its gothic flourishes and lurid suggestions. “Evidence was permitted that should not have been. Indulgence was given that almost became licence.”
Detail by detail, the Crown Prosecutor unpicked the defence case. The prisoner had said nothing on the witness stand to show that Massey was a man without feeling or remorse, or that he would be guilty of criminal conduct. Quite the reverse. What had Carrie told her brother-in-law when she ran to her relatives after the bedroom incident? “She said that she thought he must have been drunk. Her own words are, ‘I guess he’ll look like two cents tomorrow morning.’ He wasn’t the heartless, worthless brute he has been said to be! Did that expression of hers indicate to your minds that the man was without feeling, without remorse? Was it not apparent that the girl did not think so? Was not the judgment placed on the man by Carrie Davies at this time a commonsense judgment? For two years she had lived in the same house with him and in that time he had been absolutely straight.”
Speaking with careful precision, Du Vernet reminded the jurors that Carrie had told Ed Fairchild that she expected her boss would come to his senses. “Next day, [Bert Massey] hurries through his breakfast and gets out. Does that not indicate that he was ashamed? He comes back to his house probably feeling that he has done wrong and ought to apologize. Here was an unprotected man coming up the street, and the girl comes down the steps and as he opens the door she fires. He says, ‘Oh don’t.’ But she comes forward and fires again. To plead that she was in actual danger of her life at that time was not possible.” That she might have lost control of herself was quite another matter, continued Du Vernet in the same quiet, reasonable tone, but he was only pointing out that there could be no justification in the eyes of the law in this case.
Du Vernet pushed a little further, suggesting to the jury that Carrie’s defence had been carefully embroidered. “When the girl goes to her brother-in-law, she tells a story of the man taking hold of her and kissing her. When she comes before the detectives, she tells about the kissing and then adds that upstairs in his room he made improper remarks to her and she pushed him away. Now, when she comes before you, she tells a third story, quite a different one. She adds to her previous stories, not improperly, I admit, but nevertheless, the stories are different.”
The prosecutor turned to other weaknesses in the Dewart version. Carrie had returned to Walmer Road, from her sister’s house, on the Sunday night after Massey had harassed her. “Did that show fear or terr
or of death or anything more than that the man had done a foolish thing that he would be sorry for? … There is no suggestion that anything improper took place when the boy was in the house. It is not a case of a girl fighting for her life and honor. There is nothing of that kind here.
“Doesn’t it look as though he had merely forgotten himself on that one occasion? He may, perhaps, have had a few drinks. Only taking the girl’s story as she tells it to you, without its being possible to hear the other side of the case, these are the facts. And do you think that this man intended to render himself liable to the death penalty or life imprisonment, punishments that may be meted out for the offence she says she feared he would commit?”
Du Vernet paused again, before beginning his summation. He had done his best to strip Bert Massey’s death of Dewart’s melodramatic embroidery, and even to suggest that Carrie had herself known that Massey’s clumsy fumbles were not really much of a threat. But had he convinced the jury, or were its members still awash in pity for a weeping virgin? Along with Chief Justice Mulock, the jurors were poker-faced. Perhaps the prosecution should try and put Carrie in a new light …
“She did not seem to show any remorse for taking this man’s life,” Du Vernet mused, staring hard at the foreman of the jury. “A man strong and healthy at one moment, coming to his home, and the next moment, a bleeding corpse. It is a serious matter, and it is not this man you must consider. It is the rights of the community. Look at the deliberation; look at the way she puts it herself. She goes upstairs, and one of the most pathetic things in this case is that the unfortunate man probably owes his death to the fact that [his own son] taught her how to shoot. She gets [the gun] and six cartridges, but finds five enough. She loads it and goes downstairs. Her own story is, ‘He opened the door and I fired a shot … I knew I didn’t kill him, as he ran out on the sidewalk. I ran to the verandah and fired from there and he fell.’
“What danger is she in of her life?”
How difficult it was to remind jurors that, despite a trial’s dramatic overtones, this was about the law rather than rival scripts. Carrie Davies had shot an unarmed man, and the Canadian Criminal Code specified penalties for such actions. Du Vernet drew breath for one final appeal to logic and law, rather than emotion.
“If you can say honestly that she lost control, the law allows you to say so. But let us brush aside all this nonsense about justification. No man is bound to surrender his life, and force may be repelled with force, but that does not apply to this case. We must not let down the bars of law and order, and we must do our duty, even if it is hard. The jury has realized that the law, in its efforts to be fair and reasonable, has a merciful side, but it must protect the public.”
Edward Du Vernet had been on his feet for almost an hour, and Hartley Dewart gave him a courteous nod as the prosecution counsel gathered his robes around him and returned to his seat. Once again, some reporters shot out of the room to dictate the gist of Du Vernet’s address to editors, and another shift took their places. It was now time for Chief Justice Mulock’s charge to the jury. The judge’s role was to remind jurors of the law, and the choices before them, but his instructions would reveal whose side the canny old politician took. In the prisoner’s dock, Carrie Davies slumped helplessly, as twelve men prepared to mull over the arguments they had heard.
{ CHAPTER 16 }
“Order! Order!”
SATURDAY, FEBRUARY 27
NO PEACE UNTIL GERMANS HAVE BEEN CRUSHED
… Britain has promised to fight to the last ship and the last man to secure complete reparation for Belgium’s wrong, and France, which is suffering infinitely more from the war than England, is equally determined.
—Toronto Daily Star, Saturday, February 27, 1915
Constant irritation on the mind, said Mr. Dewart, brought on a state when the limit of resistance was reduced and the sufferer was akin to one under delusions. This was not a story but a fact. This state would deprive one of self-control … Was hers a heart story wrung from a burdened soul, or was it merely a girl’s story?
—Toronto Daily Star, Saturday, February 27, 1915
The case which you are considering is a serious one,” began Chief Justice Sir William Mulock at 11:20, as he embarked on his charge to the jury. “I am sure it will cause you, as it does the Court and everyone concerned in it, very serious thought. You are all, I am sure, impressed with the gravity of the issue, and the vital importance to the community that you should reach a conclusion in harmony with the facts and in accordance with the law.”
Listening attentively from the Crown prosecutor’s table, Edward Du Vernet could be forgiven for hoping that His Lordship had been unmoved by Hartley Dewart’s colourful defence. Looking as stern as Moses, Sir William seemed in no mood for bodice-ripping sensationalism as he reminded the twelve jurors of the alternatives before them. Despite all the emotion whipped up by the newspapers, perhaps the chief justice would stick to the letter of the law, and Carrie would be sent down.
“The case admits of three different verdicts at your hands,” Mulock went on to explain. “One, that of murder; the second, that of manslaughter; and the third, not guilty. I will endeavour to make clear to you what circumstances in connection with the case give it the legal character of murder, what of manslaughter, and what would excuse the act of killing. Then, with those instructions in your minds, when you retire you will have to determine in which class of those three cases this one belongs—murder, manslaughter, or excusable homicide.”
So far, so balanced. The judge’s authoritative tones, honed by his twenty-three years as an MP and cabinet minister in Ottawa, held listeners in thrall. Hartley Dewart sat impassively across the court from Du Vernet, his face portraying not a quiver of concern that the case might not go his way. All eyes were on the chief justice, and almost none on Carrie, who seemed to have shrunk to nothing in her old brown coat.
Justice Mulock continued: “The word ‘homicide’ simply means the act of one person killing another. Homicide is of two kinds, wrongful and punishable, or innocent. A person is either guilty of murder—the most serious form of homicide—or guilty of the lesser homicide, manslaughter, or is only guilty of excusable homicide, which means not guilty. The prisoner admits the killing and therefore we have not to commence with what caused the death.”
The chief justice spent a further ten minutes explaining the nuances of a murder charge—the requirement that there should be “malice aforethought,” the legal definition of malice, the need for evidence to demonstrate absence of malice, the burden on the accused to justify and explain away the offence.
“The malice of which I am speaking,” continued the judge, “is not that understood in common conversation. I am using it in its legal sense. What does it mean? It means a wrongful act done intentionally, without just cause or excuse.”
A smile tugged at Hartley Dewart’s lips. As the Old Boy tied himself in knots while exhaustively demonstrating his grasp of the law, expressions of confusion and boredom flitted across some jurors’ faces. It was difficult to untangle the meaning of some of his pronouncements. It was certainly beyond the ability of the Evening Telegram reporter, who quoted him as saying, “For this case it may be assumed that either the killing was malicious and consequently amounts to murder until the contrary appears from excuse or justification and unless such circumstances appear in the evidence of the prosecution it is incumbent upon the prisoner to establish such alleviating circumstances to the satisfaction of the court and the jury, failing which the homicide retains the character presumed by the law, namely that of murder.”
Next, Justice Mulock moved on to manslaughter. He read out loud the Criminal Code clauses dealing with manslaughter, and then dealt with the concept of self-defence in words that can only have confused the jurors further: “If the person assaulted can successfully retreat from the assailant, he should adopt that course instead of killing him. If instead of retreating he kills him, the plea of self-defence will not excuse
the act. Everyone who is unlawfully assaulted is justified [in] repelling force by force, and he would be justified even though he causes death or grievous bodily harm if he causes it under reasonable apprehension of death or of grievously bodily harm from the violence with which the assault was originally made.” Would any juror see through this tangle of verbiage a template on which to judge a woman who, when she fired the gun, was not “repelling force by force”?
However, the judge was clearer when he turned to the case before him. “If you find that … there was no premeditation, and that [the prisoner] acted on the spur of the moment … then you would say there was no murder in her heart.” Mulock also dismissed the suggestion that Carrie’s story had been embellished with every telling—that Dewart had inflated her tale with suspect salacious details. “It was stated by one of the counsel that she gave a more elaborate story here than at the inquest. I do not discover any substantial variation of the story the prisoner told on each occasion.”
This was the point at which the two KCs must have realized where Sir William was heading. As he continued with his instructions to the jury, he emphasized all the elements in the case most favourable to Carrie. The evidence of virginity had obviously had the desired impact, although he never mentioned it. “She was a refined girl,” he intoned from the bench, “with refined, pure ideas. Evidently she is a person of a supersensitive, conscientious nature. Her pledge to her mistress not to absent herself from the house when the master was absent was a pledge she felt bound to keep, and in this age I think it is an encouraging and pleasant thing to find some person so devoted to respecting one’s promises as the prisoner seems to have been.
The Massey Murder Page 21