Chapter One
Trial for Murder
The prisoner had been to a public school, the charge was murder, the victim an attractive girl, and there had been several similar unsolved murders not long before. So, of course, the Cunningham Assize Court was crowded.
“Members of the jury,” said counsel for the prosecution, “it is no part of my duty to emphasize to you the atrocious nature of this crime. On the contrary, I tell you that, as far as the prosecution is concerned, the only matter which you have to decide is whether the accused committed it or not. You must not let the natural horror which you no doubt feel at this deed influence you against the accused in the least. It cannot be disputed that someone killed this girl, it cannot be disputed that the man who killed her is a brute of the worst description; the sole question in issue between the prosecution and the defence is whether the prisoner is that brute. So, on behalf of the prosecution, I invite you, as far as possible, to put out of your minds the ghastly nature of the act and to forget that, if this man did murder this girl, he must be a fiend indeed. Consider only whether he is the man. I have to admit that, though it is easy for me to make such a submission to you, it may not be altogether easy for you to give effect to it, particularly in view of the injuries which were inflicted and the fact that the girl was of the highest character.”
Counsel continued in the same strain for some minutes. He then outlined the substance of the evidence against the accused.
“On the fifth of December,” he said, “at about six pm, Ellen Wimslow left her home apparently to do a little shopping. Several people saw her in the town. She was last seen there in a café. A man was sitting at the same table. There is some evidence that it was the prisoner, but I do not stress this, as the waitress who thinks it was he is not absolutely certain about it. However, I shall call her and you must judge for yourselves. At about half-past seven a friend of Ellen’s – Norah Parker – passed her walking across the common towards her home with a man. Ellen was never seen alive again. Her parents were not unduly alarmed at her not being home by half-past seven, but when eight o’clock came they became anxious. Ellen, as I have told you, was a girl of the highest character and she was also of a punctual nature. Her parents, fearing an accident, communicated with the police and the hospital. There had been no accident. At half-past eight Ellen’s parents started to make inquiries among their neighbours, and as a result of what Norah Parker told them, they searched the common. Eventually, at about nine-fifteen, they found her – dead, with the injuries which I have described. The medical evidence will be that she must have been dead about an hour. There were traces of blood on her fingernails; it was of the same group as that of the prisoner. But as that is the most common group the prosecution lays no stress on that factor. Had it been of a different group, it would have done much to prove the prisoner’s innocence. As it is, the only conclusion I ask you to draw from the analysis of the blood on the fingernails is that the murderer could have been the prisoner. But the blood did show that there must be a scratch or scratches on the murderer. On the body being discovered, the police made immediate inquiries and naturally they tried to find the man with whom Norah Parker had seen Ellen just before the murder had taken place. I do not think that it will be disputed that that man either committed the murder or, at the least, might be able to give information which could have assisted the police in their task. Accordingly, nationwide appeals were made to him to come forward – in the Press, by radio, placards and advertisements. No one answered the appeal. If the man was not the murderer, one wonders why. It is difficult to think that he did not hear or read the appeal. It received the widest publicity. Of course, if he was the murderer there was an excellent reason for not coming forward. In the course of their investigations Norah Parker was shown by the police a number of photographs and, with some hesitancy, she picked out one as being something like the man she had seen with Ellen. She will tell you that the photograph was of a younger man and she could not be at all sure that it was the same man, but of all the hundreds of photographs she looked at, it was the only one which she chose. Members of the jury, that photograph was a photograph of the prisoner.”
Counsel paused to gain the necessary effect from what he had said and what he was about to say.
“And that photograph,” he went on, “was taken ten years ago. At this stage I will only make this comment. If the prisoner was not the man, it is an extraordinarily unfortunate coincidence for him that Miss Parker should have picked out his photograph. As a result, within ten days of the murder, Chief Inspector Brooke went to see the prisoner who, as you will hear, lived in Medlicott – a town some fifty miles away from Greenly, where Ellen lived, but on the same railway line. You will hear from the inspector what took place at that interview. It is sufficient for me to tell you now three things: first, that the prisoner denied that he had ever been to Greenly on or about the day of the murder, and secondly – secondly, that there were two faint marks on the prisoner’s face which might have been the remains of scratches. Thirdly, the prisoner told the inspector that he had scratched his face about ten days previously through brushing it against a branch of a tree in the dark in his garden. Members of the jury, if, when you have heard the whole evidence, you are satisfied that the prisoner was at Greenly on the night of the murder, that he was the man who was seen walking with Ellen, you may be equally satisfied that he is guilty of the crime with which he is charged. If he was innocent, why should he deny having been at Greenly? Perhaps my learned friend may suggest a reasonable answer. Or if you, members of the jury, can think of such an answer, by all means take it into consideration. I can only say that the prosecution is unable to suggest any. And then, members of the jury, what about the scratches? Another coincidence? If so, the prisoner is certainly a very unlucky man. By coincidence Miss Parker picks out the wrong man and, by coincidence, that man had his face scratched at about the time of the murder. Shortly after his interview with the inspector, the prisoner was asked if he would have any objection to attending an identification parade. He said he had no objection. He stood among twenty people similarly dressed, of similar ages and of a condition in life similar to his. You will hear what took place at that parade. I need only tell you now that Miss Parker identified the prisoner. Another terrible coincidence, if the prisoner is innocent. But the coincidences do not stop there. The ticket collector at Greenly station will tell you that just before the last train left for Medlicott – you will remember that is where the prisoner lived – a man of the same build and type as the prisoner came hurriedly through the barrier. The collector cannot identify the prisoner. Indeed, you might feel doubtful of his evidence if he could, but he will tell you that he is quite satisfied that the two men – if there were two – were of the same type and that the man he saw wore a grey trilby hat. The prisoner had at home such a hat.”
And so counsel went on, building up the case against the prisoner and effectively calling the attention of the jury to the way in which the coincidences were increasing in number if the prisoner were innocent. At last he finished and called his evidence. The most important witness was, of course, Norah Parker. She was an educated girl who gave her evidence quietly and well, though she felt extremely nervous. The pageantry and solemnity at an Assize Court are sufficient in themselves to make a witness nervous, but the knowledge that her evidence might be responsible for sending a man to his death naturally increased Miss Parker’s nervousness. In spite of this, she controlled herself remarkably well. It is indeed astonishing how many witnesses, who are wholly unused to giving evidence, are able to do this. Breakdowns do, of course, occur, but they are exceptional.
Part of Miss Parker’s evidence went as follows:
Prosecuting Counsel: Tell the jury whom you saw.
The Witness: I saw Ellen Wimslow and a man.
Prosecuting Counsel: In which direction were they walking?
The Witness: The same as I was.
Prosecuting Counsel: Could you hear them talking?
The Witness: They were talking but, apart from one word, I either could not catch or do not remember what they said.
Prosecuting Counsel: What was the word?
The Witness: Controversy. (She pronounced the word with an accent on the first and third syllables.)
Prosecuting Counsel: Who said it?
The Witness: The man.
Prosecuting Counsel: Why do you remember the word?
The Witness: Because I’ve always thought the correct pronunciation was con tro ver sy, but recently I’ve heard quite a number of educated people say contr o versy. I’d begun to wonder if I was wrong and I noticed him use the word contr o versy.
Prosecuting Counsel: My Lord, I am coming back, of course, to this part of the story, but I think it will be more helpful to the jury if for the moment I invite the witness to take her mind now to the identification parade.
The Judge: Very well.
Prosecuting Counsel: Now, Miss Parker, do you remember attending an identification parade at Medlicott police station?
The Witness: Yes.
Prosecuting Counsel: Did you see a number of men?
The Witness: Yes.
Prosecuting Counsel:Did you pick out one?
The Witness: Yes.
Prosecuting Counsel: Who was it?
The Witness (pointing towards the dock): The man over there.
The Judge: You mean the prisoner?
The Witness: Yes, my Lord.
Prosecuting Counsel: Did you say anything in the prisoner’s presence?
The Witness: Yes.
Prosecuting Counsel: What did you say?
The Witness: I asked him to say the word which I had written down on a piece of paper.
Prosecuting Counsel: What was the word?
The Witness: Controversy.
Prosecuting Counsel: Did the prisoner look at the piece of paper and say the word?
The Witness: Yes.
Prosecuting Counsel: How did he pronounce it?
The Witness: Contr o versy.
Prosecuting Counsel: Now, Miss Parker, I want to go back to what you were telling us. How far were you behind Miss Wimslow and the man when you heard the word controversy used?
The Witness: A few yards maybe.
Prosecuting Counsel: I assume you could not then see their faces?
The Witness: No.
Prosecuting Counsel: Did you know then that it was Miss Wimslow?
The Witness: Yes, I know her walk and felt sure it was her.
Prosecuting Counsel: Go on, Miss Parker, tell us in your own words what happened.
The Witness: I was walking faster than they were and soon caught them up. I turned round as I passed them and just said “Hullo, Nell,” or something like that.
Prosecuting Counsel: Could you see her face?
The Witness: Yes.
Prosecuting Counsel: How? It was quite dark.
The Witness: There was a street lamp about thirty yards ahead.
Prosecuting Counsel: Could you see the face of the man?
The Witness: Fairly well.
The Judge: What do you mean by that? You recognized your friend Miss Wimslow.
The Witness: That’s really what I mean, my Lord. The light was quite sufficient to recognize anyone I knew. If I’d known the man before, I’m sure I should have recognized him.
Prosecuting Counsel: But you hadn’t known him before?
The Witness: No.
Prosecuting Counsel: Or, as far as you know, seen him?
The Witness: No.
Prosecuting Counsel: Have you seen him since?
The Witness: I’m sure I have.
Prosecuting Counsel: How many times?
The Witness: Twice – that is, not counting today.
The Judge: Do you mean that since that night you have seen the man whom you saw walking that night with Miss Wimslow twice?
The Witness: Yes.
The Judge: When?
The Witness: Once in the police station yard at Medlicott, my Lord, and once in Court before the Magistrates.
The Judge: You mean the prisoner?
The Witness: Yes, my Lord.
Prosecuting Counsel: Have you any doubt about it?
The Witness: No real doubt, my Lord, but, of course, I only saw him for a moment.
Prosecuting Counsel: Did Miss Wimslow say anything to you?
The Witness: She said much the same as I did – “Hullo, Norah” or something like that.
Prosecuting Counsel: What happened then?
The Witness: I just walked on home.
Prosecuting Counsel: Thank you, Miss Parker, that is all I wish to ask.
Counsel for the defence then rose to cross-examine.
Defending Counsel: Miss Parker, early in your evidence you told my learned friend that you had seen a photograph of the prisoner which we know was taken ten years ago.
The Witness: Yes.
Defending Counsel: Do you think that helped you to pick out the prisoner at the identification parade?
The Witness: How do you mean “helped me”?
Defending Counsel: Do you think you could have identified him if you hadn’t seen the photograph first?
The Witness: I think so, yes.
Defending Counsel: But you can’t be sure?
The Witness: One can be sure of so few things.
Defending Counsel: Then you are not sure?
The Witness: I’m as sure as one can be of such things.
Defending Counsel: If you were sufficiently sure when you saw the prisoner at the parade, why did you ask him to say the word “controversy”?
The Witness: I’d mentioned the word to the inspector and he thought–
Defending Counsel: I don’t want to know what the inspector thought.
The Witness: Then–?
Defending Counsel: Either you were quite sure of the prisoner’s identity when you saw him or you were not? Which was it?
The Witness (after a pause): I felt as sure as I could be in my own mind.
Defending Counsel: Well – you couldn’t feel sure in anyone else’s mind. If you felt as sure as you did, was there any point in asking him to say the word?
The Witness: I think so, yes – a little.
Defending Counsel: Why?
The Witness: It was a help.
Defending Counsel: But you didn’t need any help, did you? Or did you?
The Witness: I don’t quite know what you mean.
Defending Counsel: Well – first of all – were you given any help to identify the prisoner?
The Witness: Given? By whom?
Defending Counsel: By anyone?
The Witness: No, certainly not.
Defending Counsel: You are quite sure of that?
The Witness: Yes – quite.
Defending Counsel: Well – if you’re so sure, why did you say “by whom” when I first asked you?
The Witness: I don’t know. I expect I got a bit muddled. I’m not used to giving evidence and I find it rather confusing.
Defending Counsel: I quite understand, Miss Parker, I realize it’s very difficult for you. You’re not used to going to police stations either, I suppose?
The Witness: Well – I have been.
Defending Counsel: Oh?
The Witness: There was a dog licence once and another time I’d left my car too long in the High Street.
Defending Counsel: I see. Have you been to Scotland Yard before as well?
The Witness: Oh no.
Defending Counsel: You found that rather frightening too, I suppose?
The Witness: Well, they were very nice.
Defending Counsel: And they showed you a lot of photographs?
The Witness: Yes, they did.
Defending Counsel: How quickly did you look through them?
The Witness: I don’t know exactly. I looked at them.
Defending Counsel: How many did you see altogether?
The Witness: I don’t know, but a great many.
The Judge: Give the jury some idea. Was it tens, hundreds, or thousands?
The Witness: I should say some hundreds, my Lord.
Defending Counsel: Didn’t you find that rather confusing – seeing so many different faces?
The Witness: I don’t know that it was confusing.
Defending Counsel: Your object was to identify a man whose face you had seen for perhaps one second?
The Witness: A moment or two.
Defending Counsel: And hundreds of different faces were put in front of you?
The Witness: Yes.
Defending Counsel: Casting your mind back, do you think some of them – apart from the one you picked out – were like the prisoner?
The Witness: How do you mean – like the prisoner?
Defending Counsel: Had some of them the same characteristics as the prisoner – dark hair, clean-shaven, and so on?
The Witness: Oh – yes – some of them seemed to have dark hair and were clean-shaven.
Defending Counsel: And had ears like the prisoner?
The Witness: I didn’t particularly notice the ears.
The Judge: As far as I can see, there is nothing unusual about the prisoner’s ears.
Defending Counsel: I agree, my Lord, that was my point. Many of the faces in the photographs had points in common with the prisoner’s face?
The Judge: No doubt they each had a nose, mouth, eyes and ears, if that’s what you mean, Mr Duffield.
Defending Counsel: It is not what I mean, my Lord. Miss Parker, did not many, or at any rate some, of those photographs have faces on them which had, say, ears like those of the prisoner, eyebrows like those of the prisoner, mouths like those of the prisoner?
The Witness: They may have.
Defending Counsel: The photograph you picked out was, as you know, taken ten years ago.
The Witness: Yes.
Defending Counsel: What was there about it which made you think it was the man you saw on the night of the murder?
The Witness: I don’t know. I just had a feeling about it.
Defending Counsel: Would you say the ears were the same?
The Witness: May I see the photograph?
Defending Counsel: Not at the moment, please. I want to know what your recollection about it is first. Was it the nose, the mouth, or something else which you thought you recognized?
The Witness: I can’t say without the photograph. And even with it, I may not be able to tell you anything in particular. I just felt he was the man.
Defending Counsel: You might be wrong?
The Witness: I might be, but I don’t think I am.
Defending Counsel: Now perhaps you’ll look at the photograph.
The Witness (after being handed the photograph): Yes?
Defending Counsel: Can you now say that there is any feature which particularly impressed you?
The Witness: No, I can’t say that there was.
Defending Counsel: Now, would you be good enough to look at the prisoner – not just for a moment – but have a good look at him, please.
The Witness (after a pause while she looks at the prisoner): Yes?
Defending Counsel: Any particular feature in him which you recognized?
The Witness: I can’t say there is.
Defending Counsel: It was just a moment’s glance when you saw him on the common?
The Witness: A moment or so.
Defending Counsel: You had no particular reason for looking at him?
The Witness: No, but I expect I wanted to see if I knew him.
Defending Counsel: At what stage at the identification parade did you feel as sure as you could be that the prisoner was the man? After or before he said “contr o versy”?
The Witness: After, I suppose.
The Judge: Why do you suppose after? You must have picked him out before you asked him to say the word.
The Witness: Yes, my Lord.
The Judge: When you picked him out, how did you feel about it? Quite sure, fairly sure, uncertain, or what?
The Witness: It’s difficult to analyse my feelings at the time, my Lord, but I think I must have felt fairly sure or I shouldn’t have picked him out.
Defending Counsel: And then, when he said “contr o versy”, you felt more sure?
The Witness: Yes – I suppose so.
Defending Counsel: But not absolutely sure – not as sure as you know you’re giving evidence now?
The Witness: No – not as sure as that.
Defending Counsel: And before he said “contr o versy”, you felt even less sure?
The Witness: I really don’t know.
Defending Counsel: But surely it follows. If you felt more sure afterwards, you felt less sure before?
The Witness: I agree that sounds right, but it’s very difficult answering questions about it now.
Defending Counsel: More or less difficult than identifying a man you’d seen for a moment?
The Witness (after a pause): I really don’t know what to say to that.
Defending Counsel: I quite understand, Miss Parker – you needn’t bother to answer.
Defending counsel sat down and prosecuting counsel rose to re-examine.
Prosecuting Counsel: Only just a few questions, Miss Parker. Within a week or so of your friend being killed, you went to Scotland Yard and picked out a photograph?
The Witness: Yes.
Prosecuting Counsel: Whose was it?
The Witness: The prisoner’s.
Prosecuting Counsel: Did anyone give you the slightest prompting or assistance to pick it out?
The Witness: No.
Prosecuting Counsel: Within a few days of that, you went to an identification parade?
The Witness: Yes.
Prosecuting Counsel: Who did you pick out there?
The Witness: The prisoner.
Prosecuting Counsel: Did anyone give you the slightest prompting or assistance to pick him out?
The Witness: No.
Prosecuting Counsel: Thank you, Miss Parker.
Then the other witnesses were called – the girl’s father, the ticket collector, the waitress at the café, a pathologist, and Inspector Brooke. They gave evidence substantially in accordance with counsel’s opening statement. The case for the prosecution closed, and the prisoner went into the witness box.
After a few formal preliminary questions, his examination went as follows:
Defending Counsel: Mr Essex, did you serve throughout the 1939-45 war?
The Prisoner: Yes.
Defending Counsel: I think you were twice wounded?
The Prisoner: Yes.
Defending Counsel: And twice mentioned in dispatches?
The Judge: What has this to do with the case, Mr Duffield?
Defending Counsel: Character, my Lord.
The Judge: Well, Mr Duffield, the responsibility is yours. I assume you appreciate what you are doing?
Defending Counsel: Absolutely, my Lord.
The Judge: Mr Duffield, you’ll forgive me if I make quite certain that you are fully aware of what I have in front of me.
Defending Counsel: I’m most grateful to your Lordship, but I am fully aware of the position.
The Judge: Very well. You may ask the question.
Defending Counsel: Thank you, my Lord.
The prisoner stated that he had been mentioned in dispatches twice and gave a short history of his life. He had been educated at Blanston College, going on from there to Cambridge. He was now in business, unmarried, lived by himself, was aged thirty-eight. With the exception of one matter, he had an exemplary character. It was that exception to which the judge was referring. He had done so in terms which the jury were not intended to understand. In most criminal cases a man’s previous bad character cannot be given in evidence against him unless he attacks the character of other witnesses or gives evidence of his own good character. The judge was warning the defending counsel that if the prisoner gave evidence of his own good character, a previous conviction could be brought out in evidence. Defending counsel had decided to accept this position and to introduce the conviction himself.
Defending Counsel: You said that apart from one conviction you had always borne an exemplary character. What was the conviction for?
The Prisoner: Common assault. I was fined £10.
Defending Counsel: If necessary, are you prepared to tell my Lord and the jury the full circumstances of that case?
The Prisoner: Certainly. I lost my temper and had to pay £10 for it.
Defending Counsel: Very well. Now to deal with the facts of this case. Did you know the dead girl?
The Prisoner: No, I had never heard of her or, to the best of my knowledge, seen her.
Defending Counsel: Did you murder her?
The Prisoner: Certainly not.
Defending Counsel: Were you with her on the fifth of December last?
The Prisoner: Neither then nor on any other occasion.
Defending Counsel: Were you in Greenly on the fifth of December last?
The Prisoner: I was not.
Defending Counsel: Where were you?
The Prisoner: As I told the police, I was in Medlicott all day.
Defending Counsel: Where were you between 6 and 10pm that evening?
The Prisoner: At home.
Defending Counsel: How do you live – in a house, flat, or rooms?
The Prisoner: I have a small house.
Defending Counsel: Do you live alone?
The Prisoner: Yes.
Defending Counsel: Does anyone look after you at all?
The Prisoner: I have some help every day except Saturdays and Sundays.
Defending Counsel: We know that the fifth of December was a Saturday. Do you remember what you did that day?
The Prisoner: Nothing, for the most part. I read a bit, wrote a bit, slept a bit, cooked my meals, and eventually went to bed. I was alone the whole day, as a matter of fact.
Defending Counsel: No callers?
The Prisoner: Not so far as I remember.
Defending Counsel: Thank you, Mr Essex.
Prosecuting Counsel: So that no one can corroborate your story that you were at home at the time of the murder?
The Prisoner: It isn’t my story, as you call it. It’s the truth and I hope it speaks for itself.
Prosecuting Counsel: It’s an unfortunate coincidence that Miss Parker thinks you were in Greenly.
The Prisoner: It is, but it isn’t the first and it won’t be the last.
Prosecuting Counsel: And that the ticket collector saw someone of your build go through the barrier?
The Prisoner: I don’t think that’s in the least unfortunate. He must have seen heaps of people of my build go through the barrier.
Prosecuting Counsel: And that you had scratched your face?
The Prisoner: Who hasn’t at some time or another?
: At about the same time as a girl is murdered defending herself?
The Prisoner: I’m pretty certain if you asked the whole population you’d find other people had done the same thing at the same time.
Prosecuting Counsel: There’s no doubt is there that the man who killed this girl assaulted her first?
The Prisoner: From what I have heard in this case and seen in the papers, there is no doubt, but I know nothing about it of my own knowledge.
Prosecuting Counsel: You do know something about assault, of your own knowledge.
The Prisoner: I’ve already said I once assaulted someone in a temper.
Prosecuting Counsel: A girl?
The Prisoner: A woman.
Prosecuting Counsel: A young woman?
The Prisoner: I didn’t ask her age.
The Judge: Don’t try to be funny. Did she look young or old or middle-aged?
The Prisoner: Between thirty and forty, I should say, but I don’t really remember. It’s some time ago.
Prosecuting Counsel: Have you assaulted so many people that you can’t remember the age of this particular woman?
The Prisoner: That is the only woman I’ve ever assaulted and I’ve never assaulted a man – except, of course, in the Army – and the men I assaulted were on the other side. D’you want to know their ages?
The Judge: Don’t be impertinent. You must behave yourself.
The Prisoner: I don’t like counsel’s hectoring manner.
The Judge: If I think you are treated unfairly, I shall intervene. So far, it is only you yourself who have behaved improperly.
The Prisoner: I’m sorry, my Lord, but I’m rather on edge. Although I’m innocent, it’s a nasty position to be in.
The Judge: That I understand, but you won’t help your case by being rude or pert.
Prosecuting Counsel: I ask you again – do you really mean to say that you don’t know the approximate age of the only person you have ever assaulted?
The Prisoner: I’ve told you. Thirty to forty.
Prosecuting Counsel: I suggest to you that she was nearer twenty. Twenty-three to be exact.
The Prisoner: Well – she looked more. That’s all I can say.
Prosecuting Counsel: Why did you assault her?
The Prisoner: Because I thought she had deliberately tried to trip me up. She was wheeling her bicycle on the path.
The Judge: Was it dark?
The Prisoner: Yes – my Lord. I just said to her: “You seem to want a lot of room,” and the next I knew I was sent sprawling. I thought she’d tripped me up deliberately. I was very angry and when I got up I smacked her face.
Prosecuting Counsel: That wasn’t her story, was it?
The Prisoner: It certainly wasn’t.
Prosecuting Counsel: Didn’t she suggest that you’d caught hold of her and tried to drag her off the path?
Defending Counsel: Really, my Lord, I must object. This is quite outrageous. May I consult my client so as to decide whether to apply to your Lordship for the jury to be discharged and a fresh trial begun?
The Judge: If you wish, Mr Duffield, you may.
Prosecuting Counsel: My Lord, in my submission the evidence is admissible. Unless your Lordship rules to the contrary, I propose to ask some more questions about this. Perhaps your Lordship would think fit to ask the jury to withdraw while the matter is argued.
The Judge: Very well, Mr Fothergill, if you want to address me on the point.
o
They tried it and they did.
“Pretty dreadful to hang a man just because he pronounces a word wrong.”
“Or right perhaps.”
“If we let him go, he may kill someone else.”
“The judge says we mustn’t consider that. The only question is whether his guilt is proved in this case.”
Two hours later the jury were still undecided.
