Chapter XVI
 

Sir Herbert Templewood did not believe the evidence of the specialist, and he did not think the witness believed it himself. Sir Herbert did not think any the worse of the witness on that account. It was one of the recognised rules of the game to allow witnesses to stretch a point or two in favour of the defence where the social honour of highly respectable families was involved.

Sir Herbert saw in the present defence the fact that the hand of his venerable friend, Mr. Oakham, had not lost its cunning. Mr. Oakham was a very respectable solicitor, acting for a very respectable client, and he had called a very respectable Harley Street specialist--who, by a most fortuitous circumstance, had been staying at the same hotel as the accused shortly before the murder was committed--to convince the jury that the young man was insane, and that his form of insanity was epilepsy, a disease which had prolonged lucid intervals.

A truly ingenious and eminently respectable defence, and one which, in his heart of hearts, perhaps, Sir Herbert might not have been sorry to see succeed, for he knew Sir James Penreath of Twelvetrees, and was sorry to see his son in such a position. But he had his duty to perform, and that duty was to discredit in the eyes of the jury the evidence of the witness in the box, because juries were prone to look upon specialists as men to whom all things had been revealed, and return a verdict accordingly.

Sir Herbert made one mistake in his analysis of the defence. Sir Henry, at least, believed in his own evidence and took himself very seriously as a specialist. Like most stupid men who have got somewhere in life, Sir Henry became self-assertive under the least semblance of contradiction, and he grew violent and red-faced under cross-examination. He would not hear of the possibility of a mistake in his diagnosis of the accused's symptoms, but insisted that the accused, when he saw him at the Durrington hotel, was suffering from an epileptic seizure, combined with furor epilepticus, and was in a state of mind which made him a menace to his fellow creatures. It was true he qualified his statements with the words "so far as my observation goes," but the qualification was given in a manner which suggested to the jury that five minutes of Sir Henry Durwood's observation were worth a month's of a dozen ordinary medical men.

Sir Henry's vehement insistence on his infallibility struck Sir Herbert as a flagrant violation of the rules of the game. He did not accept the protestations as genuine; he thought Sir Henry was overdoing his part, and playing to the gallery. He grew nettled in his turn, and, with a sudden access of vigour in his tone, said:

"You told my learned friend that it is quite consistent with the prisoner's malady that he could have committed the crime with which he stands charged, and remember nothing about it afterwards. Is that a fact?"

"Certainly."

"In that case, will you kindly explain how the prisoner came to leave the inn hurriedly, before anybody was up, the morning after the murder was committed? Why should he run away if he had no recollection of his act?"

"I must object to my learned friend describing the accused's departure from the inn as 'running away,'" said Mr. Middleheath, with a bland smile of protest. "It is highly improper, as nobody knows better than the Crown Prosecutor, and calculated to convey an altogether erroneous impression on the minds of the jury. There is not the slightest evidence to support such a statement. The evidence is that he saw the servant and paid his bill before departure. That is not running away."

"Very well, I will say hastened away," replied Sir Herbert impatiently. "Why should the accused hasten away from the inn if he retained no recollection of the events of the night?"

"He may have had a hazy recollection," replied Sir Henry. "Not of the act itself, but of strange events happening to him in the night--something like a bad dream, but more vivid. He may have found something unusual--such as wet clothes or muddy boots--for which he could not account. Then he would begin to wonder, and then perhaps there would come a hazy recollection of some trivial detail. Then, as he came to himself, he would begin to grow alarmed, and his impulse, as his normal mind returned to him, would be to leave the place where he was as soon as he could. This restlessness is a characteristic of epilepsy. In my opinion, it was this vague alarm, on finding himself in a position for which he could not account, which was the cause of the accused leaving the Durrington hotel. His last recollection, as he told me at the time, was entering the breakfast-room; he came to his senses in his bedroom, with strangers in the room."

"Does not recollection return completely in attacks of petit mal?"

"Sometimes it does; sometimes not. I remember a case in my student days where an epileptic violently assaulted a man in the street--almost murdered him in fact--then assaulted a man who tried to detain him, ran away, and remembered nothing about it afterwards."

"Is it consistent with petit mal, combined with furor epilepticus, for a man to commit murder, conceal the body of his victim, and remember nothing about it afterwards?"

"Quite consistent, though the probability is, as I said before, for him to have some hazy recollection when he came to his senses, which would lead to his leaving that place as quickly as he could."

"Would it be consistent with petit mal for a man to take a weapon away beforehand, and then, during a sudden fit of petit mal, use it upon the unfortunate victim?"

"If he took the weapon for another purpose, it is quite possible that he might use it afterwards."

"I should like to have that a little clearer," said the judge, interposing. "Do you mean to get the weapon for another, possibly quite innocent purpose, and then use it for an act of violence?"

"Yes, my lord," replied Sir Henry. "That is quite consistent with an attack of petit mal."

"When a man has periodical attacks of petit mal, would it not be possible, by observation of him between the attacks, or when he was suffering from the attacks, to tell whether he had a tendency to them?"

"No, only in a very few and exceptional cases."

"In your opinion epilepsy is an hereditary disease?"

"Undoubtedly."

"Are you aware that certain eminent French specialists, including Marie, are of the opinion that hereditary influences play a very small part in epilepsy?"

"That may be." Sir Henry dismissed the views of the French specialists with a condescending wave of his fat white hand.

"That does not alter your own opinion?"

"Certainly not."

"And do you say that because this man's mother suffered from epilepsy the chances are that he is suffering from it?"

"Pardon me, I said nothing of the kind. I think the chances are that he would have a highly organised nervous system, and would probably suffer from some nervous disease. In the case of the prisoner, I should say that shell-shock increased his predisposition to epilepsy."

"Do you suggest that shell-shock leads to epilepsy?"

"In general, no; in this particular case, possibly. A man may have shell-shock, and injury to the brain, which is not necessarily epileptic."

"It is possible for shell-shock alone to lead to a subsequent attack of insanity?" asked the judge.

"It is possible--certainly."

"How often do these attacks of petit mal occur?" asked Sir Herbert.

"They vary considerably according to the patient--sometimes once a week, sometimes monthly, and there have been cases in which the attacks are separated by months."

"Are not two attacks in twenty-four hours unprecedented?"

"Unusual, but not unprecedented. The excitement of going from one place to another, and walking miles to get there, would be a predisposing factor. Prisoner would have been suffering from the effects of the first attack when he left the Durrington hotel, and the excitement of the change and the fatigue of walking all day would have been very prejudicial to him, and account for the second and more violent attack."

"How long do the after effects last--of an attack of petit mal, I mean."

"It depends on the violence of the attack. Sometimes as long as five or six hours. The recovery is generally attended with general lassitude."

"There is no evidence to show that the prisoner displayed any symptoms of epilepsy before the attack which you witnessed at the Durrington hotel. Is it not unusual for a person to reach the age of twenty-eight or thereabouts without showing any previous signs of a disease like epilepsy?"

"There must be a first attack--that goes without saying," interposed the judge testily.

That concluded the cross-examination. Mr. Middleheath, in re-examination, asked Sir Henry whether foam at the lips was a distinguishing mark of epilepsy.

"It generally indicates an epileptic tendency," replied Sir Henry Durwood.

At the conclusion of Sir Henry Durwood's evidence Mr. Middleheath called an official from the War Office to prove formally that Lieutenant James Penreath had been discharged from His Majesty's forces suffering from shell-shock.

"I understand that, prior to the illness which terminated his military career, Lieutenant Penreath had won a reputation as an exceedingly gallant soldier, and had been awarded the D.S.O," said Mr. Middleheath.

"That is so," replied the witness.

"Is that the case?" asked the judge.

"That, my lord, is the case," replied Mr. Middleheath.

Sir Herbert Templewood, on behalf of the Crown, proceeded to call rebutting medical evidence to support the Crown contention that the accused was sane and aware of the nature of his acts. The first witness was Dr. Henry Manton, of Heathfield, who said he saw the accused when he was brought into the station from Flegne by Police Constable Queensmead. He seemed perfectly rational, though disinclined to talk.

"Did you find any symptom upon him which pointed to his having recently suffered from epilepsy of any kind?" asked Sir Herbert.

"No."

"Do you agree with Sir Henry Durwood that between attacks of epilepsy the patient would exhibit no signs of the disease?" asked Mr. Middleheath.

"What do you mean by between the attacks?"

"I mean when he had completely recovered from one fit and before the next came on," explained counsel.

"I quite agree with that," replied the witness.

"How long does it usually take for a man to recover from an attack of epilepsy?"

"It depends on the severity of the attack."

"Well, take an attack serious enough to cause a man to commit murder."

"It may take hours--five or six hours. He would certainly be drowsy and heavy for three or four hours afterwards."

"But not longer--he would not show symptoms for thirty-six hours?"

"Certainly not."

"Then, may I take it from you, doctor, that after the five or six hours recovery after a bad attack an epileptic might show no signs of the disease--not even to medical eyes--till the next attack?"

"I should say so," replied the witness. "But I am not an authority on mental diseases."

"Thank you."

The next witness was Dr. Gilbert Horbury, who described himself as medical officer of His Majesty's prison, Norwich, and formerly medical officer of the London detention prison. In reply to Sir Herbert Templewood, he said he had had much experience in cases of insanity and alleged insanity. He had had the accused in the present case under observation since the time he had been brought to the gaol. He was very taciturn, but he was quiet and gentlemanly in his behaviour. His temperature and pulse were normal, but he slept badly, and twice he complained of pains in the head. Witness attributed the pains in the head to the effect of shell-shock. He had seen no signs which suggested, to his mind, that prisoner was an epileptic. In reply to a direct question by Sir Herbert Templewood, he expressed his deliberate professional opinion that the accused was not suffering from epilepsy in any form. Epilepsy did not start off with a bad attack ending in violence--or murder. There were premonitory symptoms and slight attacks extending over a considerable period, which must have manifested themselves, particularly in the case of a man who had been through an arduous military campaign. His illness might have had a bad effect on the brain, but if it had led to mental disease he would have expected it to show itself before.

From this point of view the witness, a dour, grey figure of a man, refused to be driven by cross-examination. His many professional years within the sordid atmosphere of gaol walls had taught him that most criminals were malingerers by instinct, and that pretended insanity was the commonest form of their imposition to evade the consequence of their misdeeds. The number of false cases which had passed through his hands had led him to the very human conclusion that all such defences were merely efforts to defraud the law, and, as a zealous officer of the law, he took a righteous satisfaction in discomfiting them, particularly when--as in the present instance--the defence was used to shield an accused of some social standing. For Dr. Horbury's political tendencies were levelling and iconoclastic, and he had a deep contempt for caste, titles, and monarchs.

He was too sophisticated as a witness to walk into Mr. Middleheath's trap and contradict Sir Henry's evidence directly, but he contrived to convey the impression that his own observation of accused, covering a period of nine days, was a better guide for the jury in arriving at a conclusion as to the accused's state of mind than Sir Henry's opinion, formed after a single and limited opportunity of diagnosing the case. He also managed to infer, in a gentlemanly professional way, that Sir Henry Durwood was deservedly eminent in the medical world as a nerve specialist, rather than as a mental specialist, whereas witness's own experience in mental cases had been very wide. He talked learnedly of the difficulty of diagnosing epilepsy except after prolonged observation, and cited lengthily from big books, which a court constable brought into court one by one, on symptoms, reflex causes, auras, grand mal, petit mal, Jacksonian epilepsy, and the like.

The only admission of any value that Mr. Middleheath could extract from Dr. Horbury was a statement that while he had seen no symptoms in the prisoner to suggest that he was an epileptic, epileptics did not, as a rule, show symptoms of the disease between the attack.

"Therefore, assuming the fact that Penreath is subject to epilepsy, you would not necessarily expect to find any symptoms of the disease during the time he was awaiting trial?" asked Mr. Middleheath, eagerly following up the opening.

"Possibly nothing that one could swear to," rejoined the witness, in an exceedingly dry tone.

Mr. Middleheath essayed no more questions, but got the witness out of the box as quickly as possible, trusting to his own address to remove the effect of the evidence on the mind of the jury. At the outset of that address he pointed out that the case for the Crown rested upon purely circumstantial evidence, and that nobody had seen the prisoner commit the murder with which he was charged. The main portion of his remarks was directed to convincing the jury that the prisoner was the unhappy victim of epileptic attacks, in which he was not responsible for his actions. He scouted the theory of motive, as put forward by the Crown. It was not fair to suggest that the Treasury note which the accused paid to the servant at the inn was necessarily part of the dead man's money which had disappeared on the night of the murder and had not since been recovered. The fact that the accused had been turned out of the Grand Hotel, for not paying his hotel bill, was put forward by the Crown to show that he was in a penniless condition, but that assumption went too far. It might well be that a man in the accused's social standing would have a pound or two in his pocket, although he might not be able to meet an hotel bill of L30.

"Can you conceive this young man, this gallant soldier, this heir to an old and honourable name, with everything in life to look forward to, committing an atrocious murder for L300?" continued Mr. Middleheath. "The traditions of his name and race, his upbringing, his recent gallant career as a soldier, alike forbid the sordid possibility. Moreover, he had no need to commit a crime to obtain money. His father, his friends, or the woman who was to be his wife, would have instantly supplied him with the money he needed, if they had known he was in want. To a young man in his station of life L300 is a comparatively small sum. Is it likely that he would have committed murder to obtain it?"

"On the other hand, the prisoner's actions, since returning to England, strongly suggest that his mind has been giving way for some time past. He was invalided from the Army suffering from shell-shock, with the result that his constitution became weakened, and the fatal taint of inherited epilepsy, which was in his blood, began to manifest itself. His family doctor and his fiancee have told you that his behaviour was strange before he left for Norfolk; since coming to Norfolk it has been unmistakably that of a man who is no longer sane. Was it the conduct of a sane man to conceal his whereabouts from his friends, and stay at an hotel without money till he was turned out, when he might have had plenty of money, or at all events saved himself the humiliation of being turned out of the hotel, at the cost of a telegram? And why did he subsequently go miles across country to a remote and wretched inn, where he had never been before, and beg for a bed for the night? Were these the acts of a sane man?"

In his peroration Mr. Middleheath laid particular emphasis on the evidence of Sir Henry Durwood, whose name was known throughout England as one of the most eminent specialists of his day. Sir Henry Durwood, Mr. Middleheath pointed out, had seen the prisoner in a fit at the Durrington hotel, and he emphatically declared that the accused was an epileptic, with homicidal tendencies. Such an opinion, coming from such a quarter, was, to Mr. Middleheath's mind, incontrovertible proof of the prisoner's insanity, and he did not see how the jury could go behind it in coming to a decision.

Sir Herbert Templewood's address consisted of a dry marshalling of the facts for and against the theory of insanity. Sir Herbert contended that the defence had failed to establish their contention that the accused man was not in his right mind. He impressed upon the jury the decided opinion of Dr. Horbury, who, as doctor of the metropolitan receiving gaol, had probably a wider experience of epilepsy and insanity than any specialist in the world. Dr. Horbury, after nine days close observation of the accused, had come to the conclusion that he was perfectly sane and responsible for his actions.

The general opinion among the bunch of legal wigs which gathered together at the barristers' table as Sir Herbert Templewood resumed his seat was that the issue had been very closely fought on both sides, and that the verdict would depend largely upon the way the judge summed up.

His lordship commenced his summing up by informing the jury that in the first place they must be satisfied that the prisoner was the person who killed Mr. Glenthorpe. He did not think they would have much difficulty on that head, because, although the evidence was purely circumstantial, it pointed strongly to the accused, and the defence had not seriously contested the charge. Therefore, if they were satisfied that the accused did, in fact, cause the death of Mr. Glenthorpe, the only question that remained for them to decide was the state of the prisoner's mind at the time. If they were satisfied that he was not insane at the time, they must find him guilty of murder. If, however, they came to the conclusion that he was insane at the time he committed the act, they would return a verdict that he was guilty of the act charged against him, but that he was insane at the time.

His lordship painstakingly defined the difference between sanity and insanity in the eyes of the law, but though his precise and legal definition called forth appreciative glances from the lawyers below him, it is doubtful whether the jury were much wiser for the explanation. After reviewing the evidence for the prosecution at considerable length, his lordship then proceeded, with judicial impartiality, to state the case for the defence. The case for the prisoner, he said, was that he had been strange or eccentric ever since he returned from the front suffering from shell-shock, that his eccentricity deepened into homicidal insanity, and that he committed the act of which he stood charged while suffering under an attack of epilepsy, which produced a state of mind that led the sufferer to commit an act of violence without understanding what he was doing. In view of the nature of this defence the jury were bound to look into the prisoner's family and hereditary history, and into his own acts before the murder, before coming to a conclusion as to his state of mind.

The defence, he thought, had proved sufficient to enable the jury to draw the conclusion that Lady Penreath, the mother of the prisoner, was an epileptic. The assertion that the prisoner was an epileptic rested upon the evidence of Sir Henry Durwood, for the evidence of Miss Willoughby and the family doctor went no further than to suggest a slight strangeness or departure from the prisoner's usual demeanour. Sir Henry Durwood, by reason of his professional standing, was entitled to be received with respect, but he had himself admitted that he had had no previous opportunity of diagnosing the case of accused, and that it was difficult to form an exact opinion in a disease like epilepsy. Dr. Horbury, on the other hand, had declared that the prisoner showed nothing symptomatic of epilepsy while awaiting remand. In Dr. Horbury's opinion, he was not an epileptic. Therefore the case resolved itself into a direct conflict of medical testimony, and it was for the jury to decide, and form a conclusion as to the man's state of mind in conjunction with the other evidence.

"The contention for the defence," continued his lordship, leaning forward and punctuating his words with sharp taps of his fountain pen on the desk in front of him, "is this: 'Look at this case fairly and clearly, and you are bound to come to the conclusion that this man is not in a sound frame of mind.' The prosecution, on the other hand, say, 'The facts of this case do not point to insanity at all, but to deliberate murder for gain.' The defence urge further, 'You have got to look at the probabilities. No man in prisoner's position, a gentleman by birth and upbringing, the heir of an old and proud name, with a hitherto unblemished reputation, and the prospects of a long and not inconspicuous career in front of him, would in his senses have murdered this old man.' That is a matter for you to consider, because we do know that brutal crimes are committed by the most unlikely persons. But the prosecution also allege motive, and you must consider the question of motive. It is suggested, and it is for you to consider whether rightly or wrongly suggested, that there was a motive in killing this man, because the prisoner was absolutely penniless and wanted to get money."

"Gentlemen, you will first apply your minds to considering all the evidence, and you will next consider whether you are satisfied that the prisoner knew the difference between right and wrong so far as the act with which he is charged is concerned. You must decide whether he knew the nature and quality of the act, and whether he knew the difference between that act being right, and that act being wrong. I have already pointed out to you that the law presumes him to be of sane mind, and able to distinguish between right and wrong, and it is for him to satisfy you, if he is to escape responsibility for this act, that he could not tell whether it was right or wrong. If you are satisfied of that, you ought to say that he is guilty of the act alleged, but insane at the time it was committed. If you are not satisfied on that point, then it is your duty to find him guilty of murder. Gentlemen, you will kindly retire and consider your verdict."

The jury retired, and there ensued a period of tension, which the lawyers employed in discussing the technicalities of the case and the probabilities of an acquittal. Mr. Oakham thought an acquittal was a certainty, but Mr. Middleheath, with a deeper knowledge of the ways of provincial juries, declared that the defence would have stood a better chance of success before a London jury, because Londoners had more imagination than other Englishmen.

"You never can tell how a d----d muddle-headed country jury will decide a highly technical case like this," said the K.C. peevishly. "I've lost stronger cases than this before a Norfolk jury. Norfolk men are clannish, and Horbury's evidence carried weight. He is a Norfolk man, though he has been in London. One never knows, of course. If the jury remain out over an hour I think we will pull it off."

But the jury returned into court after an absence of forty minutes. The judge, who was waiting in his private room, was informed, and he entered the court and resumed his seat. The jury answered to their names, and then the Clerk of Arraigns, in a sing-song voice, said:

"Gentlemen, have you agreed upon your verdict? Do you find the prisoner guilty or not guilty of wilful murder?"

"Guilty!" answered the foreman, in a loud, clear voice.

"You say that he is guilty of murder, and that is the verdict of you all?"

"That is the verdict of us all," was the response.

"James Ronald Penreath," continued the clerk, turning to the accused man, and speaking in the same sing-song tones of one who repeated a formula by rote, "you stand convicted of the crime of wilful murder. Have you anything to say for yourself why the Court should not give you judgment of death according to law?"

The man in the dock, who had turned very pale, merely shook his head.

The judge, with expressionless face and in an expressionless voice, pronounced sentence of death.