Chapter XV

Although no hint of the defence was supposed to transpire, the magic words "No precedent" were whispered about in legal circles as the day for Penreath's trial approached, and invested the case with more than ordinary interest in professional eyes. Editors of London legal journals endeavoured to extract something definite from Mr. Oakham when he returned to London to brief counsel and prepare the defence, but the lunches they lavished on him in pursuit of information might have been spent with equal profit on the Sphinx.

The editors had to content themselves with sending shorthand writers to Norwich to report the case fully for the benefit of their circle of readers, whose appetite for a legal quibble was never satiated by repetition.

On the other hand, the case aroused but languid interest in the breasts of the ordinary public. The newspapers had not given the story of the murder much prominence in their columns, because murders were only good copy in war-time in the slack season between military offensives, and, moreover, this particular case lacked the essentials of what modern editors call, in American journalese jargon, "a good feature story." In other words, it was not sufficiently sensational or immoral to appeal to the palates of newspaper readers. It lacked the spectacular elements of a filmed drama; there was no woman in the case or unwritten law.

It was true that the revelation of the identity of the accused man had aroused a passing interest in the case, bringing it up from paragraph value on the back page to a "two-heading item" on the "splash" page, but that interest soon died away, for, after all, the son of a Berkshire baronet was small beer in war's levelling days, when peers worked in overalls in munition factories, and personages of even more exalted rank sold pennyworths of ham in East-end communal kitchens.

Nevertheless, because of the perennial interest which attaches to all murder trials, the Norwich Assizes Court was filled with spectators on the dull drizzling November day when the case was heard, and the fact that the accused was young and good-looking and of gentle birth probably accounted for the sprinkling of well-dressed women amongst the audience. The younger ones eyed him with sympathy as he was brought into the dock: his good looks, his blue eyes, his air of breeding, his well-cut clothes, appealed to their sensibilities, and if they had been given the opportunity they would have acquitted him without the formality of a trial as far "too nice a boy" to have committed murder.

To the array of legal talent assembled together by the golden wand of Costs the figure of the accused man had no personal significance but the actual facts at issue entered as little into their minds as into the pitying hearts of the female spectators. The accused had no individual existence so far as they were concerned: he was merely a pawn in the great legal game, of which the lawyers were the players and the judge the referee, and the side which won the pawn won the game. As this particular game represented an attack on the sacred tradition of Precedent, both sides had secured the strongest professional intellects possible to contest the match, and the lesser legal fry of Norwich had gathered together to witness the struggle, and pick up what points they could.

The leader for the prosecution was Sir Herbert Templewood, K.C., M.P., a political barrister, with a Society wife, a polished manner, and a deadly gift of cross-examination. With him was Mr. Grover Braecroft, a dour Scotch lawyer of fifty-five, who was currently believed to know the law from A to Z, and really had an intimate acquaintance with those five letters which made up the magic word Costs. Apart from this valuable knowledge, he was a cunning and crafty lawyer, picked in the present case to supply the brains to Sir Herbert Templewood's brilliance, and do the jackal work which the lion disdained. The pair were supported by a Crown Solicitor well versed in precedents--a little prim figure of a man who sat with so many volumes of judicial decisions and reports of test cases piled in front of him that only the upper portion of his grey head was visible above the books.

The defence relied mainly upon Mr. Reginald Middleheath, the eminent criminal counsel, who depended as much upon his portly imposing stage presence to bluff juries into an acquittal as upon his legal attainments, which were also considerable. Mr. Middleheath's cardinal article of legal faith was that all juries were fools, and should be treated as such, because if they once got the idea into their heads that they knew something about the case they were trying they were bound to convict in order to sustain their reputation for intelligence. One of Mr. Middleheath's favourite tricks for disabusing a jury of the belief that they possessed any common sense was, before addressing them, to stare each juryman in the face for half a minute or so in turn with his piercing penetrative eyes, accompanying the look with a pitying contemptuous smile, the gaze and the smile implying that counsel for the opposite side may have flattered them into believing that their intelligences were fit to try such an intricate case, but they couldn't deceive him.

Having robbed the jury of their self-esteem by this means, Mr. Middleheath would proceed to put them on good terms with themselves again by insinuating in persuasive tones that the case was one calculated to perplex the most astute legal brain. He would frankly confess that it had perplexed him at first, but as he had mastered its intricacies the jury were welcome to his laboriously acquired knowledge in order to help them in arriving at a right decision. Mr. Middleheath's junior was Mr. Garden Greyson, a thin ascetic looking lawyer whose knowledge of medical jurisprudence had brought him his brief in the case. Mr. Oakham sat beside Mr. Greyson with various big books in front of him.

The judge was Mr. Justice Redington, whose presence on the bench was always considered a strengthening factor in the Crown case. Judges differ as much as ordinary human beings, and are as human in their peculiarities as the juries they direct and the prisoners they try. There are good-tempered and bad-tempered judges, harsh and tender judges, learned and foolish judges, there are even judges with an eye to self-advertisement, and a few wise ones. Mr. Justice Redington belonged to that class of judges who, while endeavouring to hold the balance fairly between the Crown and the defence, see to it that the accused does not get overweight from the scales of justice. Such judges take advantage of their judicial office by cross-examining witnesses for the defence after the Crown Prosecutor has finished with them, in the effort to bring to light some damaging fact or contradiction which the previous examination has failed to elicit. In other respects, Mr. Justice Redington was a very fair judge, and he worked as industriously as any newspaper reporter, taking extensive notes of all his cases with a gold fountain pen, which he filled himself from one of the court inkstands whenever it ran dry. In appearance he was a florid and pleasant looking man, and his hobby off the bench was farming his own land and breeding prize cattle.

There were the usual preliminaries, equivalent to the clearing of the course or the placing of the pieces, which bored the regular habitues of the court but whetted the appetites of the more unsophisticated spectators. First there was the lengthy process of empanelling a jury, with the inevitable accompaniment of challenges and objections, until the most unintelligent looking dozen of the panel finally found themselves in the jury box. Then the Clerk of Arraigns gabbled over the charges: wilful murder of Roger Glenthorpe on 26th October, 1916, and feloniously stealing from the said Roger Glenthorpe the sum of L300 on the same date. To these charges the accused man pleaded "Not guilty" in a low voice. The jury were directed on the first indictment only, and Sir Herbert Templewood got up to address the jury.

Sir Herbert knew very little about the case, but his junior was well informed; and what Mr. Braecroft didn't know he got from the Crown Solicitor, who sat behind the barristers' table, ready to lean forward at the slightest indication and supply any points which were required. Under this system of spoon-feeding Sir Herbert ambled comfortably along, reserving his showy paces for the cross-examination of witnesses for the defence.

Sir Herbert commenced by describing the case as a straightforward one which would offer no difficulty to an intelligent jury. It was true that it rested on circumstantial evidence, but that evidence was of the strongest nature, and pointed so clearly in the one direction, that the jury could come to no other conclusion than that the prisoner at the bar had committed the murder with which he stood charged.

With this preamble, the Crown Prosecutor proceeded to put together the chain of circumstantial evidence against the accused with the deliberate logic of the legal brain, piecing together incidents, interpreting clues, probing motives, and fashioning together the whole tremendous apparatus of circumstantial evidence with the intent air of a man building an unbreakable cage for a wild beast. As Colwyn had anticipated, the incident at the Durrington hotel had been dropped from the Crown case. That part of the presentment was confined to the statement that Penreath had registered at the hotel under a wrong name, and had left without paying his bill. The first fact suggested that the accused had something to hide, the second established a motive for the subsequent murder.

Sir Herbert Templewood concluded his address in less than an hour, and proceeded to call evidence for the prosecution. There were nine witnesses: that strangely assorted pair, the innkeeper and Charles, the deaf waiter, Ann, the servant, the two men who had recovered Mr. Glenthorpe's body from the pit, the Heathfield doctor, who testified as to the cause of death, Superintendent Galloway, who gave the court the result of the joint investigations of the chief constable and himself at the inn, Police-Constable Queensmead, who described the arrest and Inspector Fredericks, of Norwich, who was in charge of the Norwich station when the accused was taken there from Flegne. In order to save another witness being called, Counsel for the defence admitted that accused had registered at the Grand Hotel, Durrington, under a wrong name, and left without paying his bill.

Mr. Middleheath cross-examined none of the witnesses for the prosecution except the last one, and his forensic restraint was placed on record by the depositions clerk in the exact words of the unvarying formula between bench and bar. "Do you ask anything, Mr. Middleheath?" Mr. Justice Redington would ask, with punctilious politeness, when the Crown Prosecutor sat down after examining a witness. To which Mr. Middleheath would reply, in tones of equal courtesy: "I ask nothing, my lord." Counsel's cross-examination of Inspector Fredericks consisted of two questions, intended to throw light on the accused's state of mind after his arrest. Inspector Fredericks declared that he was, in his opinion, quite calm and rational.

Mr. Middleheath's opening address to the jury for the defence was brief, and, to sharp legal ears, vague and unconvincing. Although he pointed out that the evidence was purely circumstantial, and that in the absence of direct testimony the accused was entitled to the benefit of any reasonable doubt, he did not attempt to controvert the statements of the Crown witnesses, or suggest that the Crown had not established its case. His address, combined with the fact that he had not cross-examined any of the Crown witnesses, suggested to the listening lawyers that he had either a very strong defence or none at all. The point was left in suspense for the time being by Mr. Justice Redington suggesting that, in view of the lateness of the hour, Counsel should defer calling evidence for the defence until the following day. As a judicial suggestion is a command, the court was adjourned accordingly, the judge first warning the jury not to try to come to any conclusion, or form an opinion as to what their verdict should be, until they had heard the evidence for the prisoner.

When the case was continued the next day, the first witness called for the defence was Dr. Robert Greydon, an elderly country practitioner with the precise professional manner of a past medical generation, who stated that he practised at Twelvetrees, Berkshire, and was the family doctor of the Penreath family. In reply to Mr. Middleheath he stated that he had frequently attended the late Lady Penreath, the mother of the accused, for fits or seizures from which she suffered periodically, and that the London specialist who had been called into consultation on one occasion had agreed with him that the seizures were epileptic.

"I want to give every latitude to the defence," said Sir Herbert Templewood, rising in dignified protest, "but I am afraid I cannot permit this conversation to go in. My learned friend must call the London specialist if he wants to get it in."

"I will waive the point as my learned friend objects," said Mr. Middleheath, satisfied that he had "got it in" the jury's ears, "and content myself with asking Dr. Greydon whether, from his own knowledge, Lady Penreath suffered from epilepsy."

"Undoubtedly," replied the witness.

"One moment," said the judge, looking up from his notes. "Where is this evidence tending, Mr. Middleheath?"

"My lord," replied Mr. Middleheath solemnly, "I wish the court to know all the facts on which we rely."

The judge bowed his head and waved his gold fountain-pen as an indication that the examination might proceed. The witness said that Lady Penreath was undoubtedly an epileptic, and suffered from attacks extending over twenty years, commencing when her only son was five years old, and continuing till her death ten years ago. For some years the attacks were slight, without convulsions, but ultimately the grand mal became well developed, and several attacks in rapid succession ultimately caused her death. In the witness's opinion epilepsy was an hereditary disease, frequently transmitted to the offspring, if either or both parents suffered from it.

"Have you ever seen any signs of epilepsy in Lady Penreath's son--the prisoner at the bar?" asked Sir Herbert, who began to divine the direction of the defence.

"Never," replied the witness.

"Was he under your care in his infancy and boyhood? I mean were you called in to attend to his youthful ailments?"

"Yes, until he went to school."

"And was he a normal and healthy boy?"


"Did you see him when he returned home recently?" asked Mr. Middleheath, rising to re-examine.


"You are aware he was discharged from the Army suffering from shell-shock?"


"And did you notice a marked change in him?"

"Very marked indeed. He struck me as odd and forgetful at times, and sometimes he seemed momentarily to lose touch with his surroundings. He used to be very bright and good-tempered, but he returned from the war irritable and moody, and very silent, disliking, above all things, to be questioned about his experiences at the front. He used to be the very soul of courtesy, but when he returned from the front he refused to attend a 'welcome home' at the village church and hear the vicar read a congratulatory address."

"I hope you are not going to advance the latter incident as a proof of non compos mentis, Mr. Middleheath," said the judge facetiously.

In the ripples of mirth which this judicial sally aroused, the little doctor was permitted to leave the box, and depart for his native obscurity of Twelvetrees. He had served his purpose, so far as Mr. Middleheath was concerned, and Sir Herbert Templewood was too good a sportsman to waste skilful flies on such a small fish, which would do no honour to his bag if hooked.

Sir Herbert Templewood and every lawyer in court were by now aware that the defence were unable to meet the Crown case, but were going to fight for a verdict of insanity. The legal fraternity realised the difficulties of that defence in a case of murder. It would be necessary not only to convince the jury that the accused did not know the difference between right and wrong, but to convince the judge, in the finer legal interpretation of criminal insanity, that the accused did not know the nature of the act he was charged with committing, in the sense that he was unable to distinguish whether it was right or wrong at the moment of committing it. The law, which assumes that a man is sane and responsible for his acts, throws upon the defence the onus of proving otherwise, and proving it up to the hilt, before it permits an accused person to escape the responsibility of his acts. Such a defence usually resolves itself into a battle between medical experts and the counsel engaged, the Crown endeavouring to upset the medical evidence for the defence with medical evidence in rebuttal.

The lawyers in court settled back with a new enjoyment at the prospect of the legal and medical hair-splitting and quibbling which invariably accompanies an encounter of this kind, and Crown Counsel and solicitors displayed sudden activity. Sir Herbert Templewood and Mr. Braecroft held a whispered consultation, and then Mr. Braecroft passed a note to the Crown Solicitor, who hurried from the court and presently returned carrying a formidable pile of dusty volumes, which he placed in front of junior counsel. The most uninterested person in court seemed the man in the dock, who sat looking into a vacancy with a bored expression on his handsome face, as if he were indifferent to the fight on which his existence depended.

The next witness was Miss Constance Willoughby, who gave her testimony in low clear tones, and with perfect self-possession. It was observed by the feminine element in court that she did not look at her lover in the dock, but kept her eyes steadily fixed on Mr. Middleheath. Her story was a straightforward and simple one. She had become engaged to Mr. Penreath shortly before the war, and had seen him several times since he was invalided out of the Army. The last occasion was a month ago, when he called at her aunt's house at Lancaster Gate. She had noticed a great change in him since his return from the front. He was moody and depressed. She did not question him about his illness, as she thought he was out of spirits because he had been invalided out of the Army, and did not want to talk about it. He told her he intended to go away for a change until he got right again--he had not made up his mind where, but he thought somewhere on the East Coast, where it was cool and bracing, would suit him best--and he would write to her as soon as he got settled anywhere. She did not see him again, and did not hear from him or know anything of his movements till she read his description in a London paper as that of a man wanted by the Norfolk police for murder. Her aunt, who showed her the paper, communicated with the Penreaths' solicitor, Mr. Oakham. The following day she and her aunt were taken to Heathfield and identified the accused.

"Your aunt took action to allay your anxiety, I understand?" said Mr. Heathfield, whose watchful eye had noted the unfavourable effect of this statement on the jury.

The witness bowed.

"Yes," she replied. "I was terribly anxious, as I had not heard from Mr. Penreath since he went away. Anything was better than the suspense."

"You say accused was moody and depressed when you saw him?" asked Sir Herbert Templewood.


"May I take it that there was nothing terrifying in his behaviour--nothing to indicate that he was not in his right mind?"

"No," replied the witness slowly. "He did not frighten me, but I was concerned about him. He certainly looked ill, and I thought he seemed a little strange."

"As though he had something on his mind?" suggested Sir Herbert.

"Yes," assented the witness.

"Were you aware that the accused, when he went to see you at your aunt's home before he departed for Norfolk, was very short of money?"

"I was not. If I had known----"

"You would have helped him--is that what you were going to say?" asked Mr. Middleheath, as Sir Herbert resumed his seat without pursuing the point.

"My aunt would have helped Mr. Penreath if she had known he was in monetary difficulties."

"Thank you." Mr. Middleheath sat down, pulling his gown over his shoulders.

The witness was leaving the stand when the sharp authoritative voice of the judge stopped her.

"Wait a minute, please, I want to get this a little clearer. You said you were aware that the accused was discharged from the Army suffering from shell-shock. Did he tell you so himself?"

"No, my lord. I was informed so."

"Really, Mr. Middleheath----"

The judge's glance at Counsel for the Defence was so judicial that it brought Mr. Middleheath hurriedly to his feet again.

"My lord," he explained, "I intend to prove in due course that the prisoner was invalided out of the Army suffering from shell-shock."

"Very well." The judge motioned to the witness that she was at liberty to leave the box.

The appearance of Sir Henry Durwood in the box as the next witness indicated to Crown Counsel that the principal card for the defence was about to be played. Lawyers conduct defences as some people play bridge--they keep the biggest trump to the last. Sir Henry represented the highest trump in Mr. Middleheath's hand, and if he could not score with him the game was lost.

Sir Henry seemed not unconscious of his importance to the case as he stepped into the stand and bowed to the judge with bland professional equality. His evidence-in-chief was short, but to the point, and amounted to a recapitulation of the statement he had made to Colwyn in Penreath's bedroom on the morning of the episode in the breakfast-room of the Grand Hotel, Durrington. Sir Henry related the events of that morning for the benefit of the jury, and in sonorous tones expressed his professional opinion that the accused's strange behaviour on that occasion was the result of an attack of epilepsy--petit mal, combined with furor epilepticus.

The witness defined epilepsy as a disease of the nervous system, marked by attacks of unconsciousness, with or without convulsions. The loss of consciousness with severe convulsive seizures was known as grand mal, the transient loss of consciousness without convulsive seizures was called petit mal. Attacks of petit mal might come on at any time, and were usually accompanied by a feeling of faintness and vertigo. The general symptoms were sudden jerkings of the limbs, sudden tremors, giddiness and unconsciousness. The eyes became fixed, the face slightly pale, sometimes very red, and there was frequently some almost automatic action. In grand mal there was always warning of an attack, in petit mal there was no warning as a rule, but sometimes there was premonitory giddiness and restlessness. Furor epilepticus was a medical term applied to the violence displayed during attacks of petit mal, a violence which was much greater than extreme anger, and under its influence the subject was capable of committing the most violent outrages, even murder, without being conscious of the act.

"There is no doubt in your mind that the accused man had an attack of petit mal in the breakfast-room of the Durrington hotel the morning before the murder?" asked Mr. Middleheath.

"None whatever. All the symptoms pointed to it. He was sitting at the breakfast table when he suddenly ceased eating, and his eyes grew fixed. The knife which he held in his hand was dropped, but as the attack increased he picked it up again and thrust it into the table in front of him--a purely automatic action, in my opinion. When he sprang up from the table a little while afterwards he was under the influence of the epileptic fury, and would have made a violent attack on the people sitting at the next table if I had not seized him. Unconsciousness then supervened, and, with the aid of another of the hotel guests, I carried him to his room. It was there I noticed foam on his lips. When he returned to consciousness he had no recollection of what had occurred, which is consistent with an epileptic seizure. I saw that his condition was dangerous, and urged him to send for his friends, but he refused to do so."

"It would have been better if he had followed your advice. You say it is consistent with epilepsy for him to have no recollection of what occurred during this seizure in the hotel breakfast room. What would a man's condition of mind be if, during an attack of petit mal, he committed an act of violence, say murder, for example?"

"The mind is generally a complete blank. Sometimes there is a confused sense of something, but the patient has no recollection of what has occurred, in my experience."

"In this case the prisoner is charged with murder. Could he have committed this offence during another attack of furor epilepticus and recollect nothing about it afterwards? Is that consistent?"

"Yes, quite consistent," replied the witness.

"Is epilepsy an hereditary disease?"


"And if both parents, or one of them, suffered from epilepsy, would there be a great risk of the children suffering from it?"

"Every risk in the case of both persons being affected; some probability in the case of one."

"What do you think would be the effect of shell-shock on a person born of one epileptic parent?"

"It would probably aggravate a tendency to epilepsy, by lowering the general health."

"Thank you, Sir Henry."

Mr. Middleheath resumed his seat, and Sir Herbert Templewood got up to cross-examine.