Wednesday, January 11, 2017

Circumstantial Evidence -- The Case of Jessie M’Lachlan

No Scotch trial since the case of Madeline Smith has excited so much public attention as that of Jessie M'Lachlan, for the murder of Jessie M'Pherson, before the Circuit Court at Glasgow, on the 17th, 18th, 19th, and 20th of last September. It was far less fully reported by the English than by the Scotch papers; but its intrinsic interest to persons who care for the study of judicial evidence was at least equal to that of most of the causes célèbres of recent times. It has excited an extraordinary degree of popular feeling and discussion in Scotland, and it illustrates, in a striking manner, one of the leading peculiarities of Scotch, as distinguished from English criminal procedure — the practice of interrogating the person accused. For these reasons, we propose to give a somewhat minute account of the evidence. Our authority is the report of the case contained in the Scotsman newspaper of the 18th, 19th, 20th, and 22nd of September last. The report appears to be verbatim, and fills altogether forty columns of the newspaper. The facts are as follows:—

In July last, Mr. John Fleming, an accountant, had a house at No. 17, Sandyford Place, Glasgow. He had also a cottage at Dunoon, where his family passed the summer, and where he was in the habit of staying from Friday till Monday. Jessie M'Lachlan, the prisoner, had been in his service some years before the occurrence in question, but at the time of the murder was living with her husband, a sailor, in Glasgow. On Friday, July 4th, Mr. Fleming went to Dunoon with his son, leaving at his house in Glasgow his father, Mr. James Fleming, a man of eighty-seven, but still active enough to collect rents, and able to read without spectacles, and his servant, Jessie M'Pherson, a woman of thirty-five. On the Monday afternoon, Mr. John Fleming and his son returned to Sandyford Place. When they went in, they found the old man in the passage, and the son said something to him about some meat which he had sent in for dinner. The old man answered, "There's no use sending anything in for dinner, as the servant has run off, and there's no one to cook it." He also told his grandson that her door was locked. Upon this, Mr. John Fleming went downstairs, found the servant's door locked, and opened it with a key belonging to the pantry. In the room he found the dead body of Jessie M'Pherson, and went at once for the doctors and the police, leaving everything as he found it. The state of the room and of the body were minutely described by Mr. Fleming, Dr. Watson, Dr. Joseph Fleming, and Dr. M'Leod, and by the police officers M'Call and Campbell. The result of their evidence is as follows:—The room was on the same floor as the kitchen, and had two windows looking out into the arm. When the door was opened the blinds were down and half the shutters shut. The bed stood with its side against the wall, the foot towards the door, and the head towards the window. The body was lying at the foot of the bed, with the feet towards the window, and the head in a slanting direction towards the door. It was naked from the small of the back downwards. On the upper part of the body were a shift and a woollen shift, and over it had been thrown a dark cloth or shawl. It had, upon various parts, as many as forty wounds, both cuts and bruises, of every variety of importance. The most serious wound was behind the right ear, where the great vessels of the neck were destroyed, and the skull was much injured. There were, besides this, wounds which divided the bridge of the nose. On the scalp and forehead there were wounds which divided the flesh and passed into, but not through, the skull; and there were many other cuts of less importance on the hands, arms, and other parts of the body. They appeared to have been inflicted with an instrument edged but blunt, and their depth showed that they were not given by a strong person, but either by a woman or a weak man. The jawbone, however, was cut through in two places, which would require considerable force. The bedclothes were disarranged, and stained in places with blood; and a sheet, which had been washed, and was marked with blood, was found rolled up in a corner of the room. The pillows, also, were bloody. It was suggested, as an inference from these circumstances, that the bed had been slept in. Opposite the bed, and near the fireplace, were three bloody footprints of the left foot. They appeared to be prints of a small, naked foot, with a high instep. There was also a basin behind the door, containing some bloody water. Along the lobby from the kitchen to the bedroom there was a mark, described by Dr. M'Leod as a trail, which looked as if it had been rubbed over but not washed. In the kitchen itself were what he and Dr. Fleming described as "evidence of a severe conflict." The floor, which was made of a blue stone, had been partially washed, and in the washed part stains remained, which were apparently blood-stains. There were also impressions, "which," said Dr. M'Leod, "I was then convinced, and am now convinced, had been confused footmarks. If I might be allowed to express what I mean by footmarks, I may state they were a sort of twists of portions of the heels upon the floor, with the ball of the foot in other cases marked also upon the stone." There were also marks of blood on many other parts of the kitchen and other places adjacent to it. In a drawer in the kitchen was found a cleaver with marks of blood on it. The cleaver might have produced the injuries found on the body. From all these facts, the medical witnesses, who, by the Scotch law, are allowed to state inferences in their report, inferred that the deceased had been murdered, probably within three days, by some instrument like a cleaver; that there had been a struggle, and that most of the wounds had been inflicted, whilst the deceased was lying prostrate, by a female or a weak man standing over her; and that the body had been drawn along the lobby to the room in which it was found, the face downwards, and the legs dragging along the ground. On searching the house, nothing was found to throw light upon the subject; but some silver and a quantity of plated articles were missed.

Such being the corpus delicti, the next question was, Who had committed the crime? The prosecutors, of course, maintained that the prisoner was the guilty person. She not merely denied her guilt, but pleaded specially, in a manner which the Scotch criminal law apparently admits, though it is unknown to our own system, that old Mr. Fleming had committed the murder. The evidence on the part of the prosecution was to the following effect:—Old Mr. Fleming, according to his own account, returned to Sandyford Place, after a walk, about eight o'clock on the Friday evening. He had his tea in the kitchen with the deceased, choosing to sit there because there was no other fire in the house. He stayed by the kitchen fire till about half-past nine, and then went to bed. At four in the morning he "was waukened wi' a lood squeel; efter that followed ither twa squeels—no sae lood as the ither; but it was a verra odd kind of squeel I heard." "All was by i' the coorse of a minute's time." He jumped out of bed, looked at his watch, saw that it was just four A.M., and, hearing nothing more, went to bed, and stayed there till he rose at about nine. He then went down, and being surprised at not having seen the servant, who generally brought him porridge before he got up, knocked at her door three times, and tried it, but got no answer. As he went to the door, he found a passage window into the area standing open, and closed it. He gave a minute account of the way in which he passed the Saturday, Sunday, and Monday morning, till his son arrived, mentioning the persons who called, and the places to which he went. If this evidence were true, it would follow that the murder was committed at about four o'clock on the Saturday morning, the time when he heard the cries.

As it was the case for the prisoner, that Fleming had himself committed the murder, he was cross-examined at great length, in order to bring out facts suspicious in themselves, or assertions which could be contradicted by others. The first point to which the prisoner's counsel addressed themselves was the old man's statement, that he had lain in bed till nine. He was at first confident in the correctness of this statement, and added that the first person who came to the house on the Saturday was the servant at the next house, who wanted to borrow a spade. But after a great deal of questioning, in the course of which he appears to have become much confused, he admitted that a man came with milk between eight and nine, that he refused to take any in, and that the door-chain was not up. He was then pressed to give a reason why he did not let the servant open the door, the obvious suggestion being that he then knew that she was dead. His answer was that he had been over the house just before the milkman called, and, finding no one, naturally answered the door on hearing a knock. Both the milkman and his boy (called as witnesses for the prisoner) said they called at about 7.45, and the boy added that he saw the old man dressed, and that he took the chain off when he spoke to him. Thus, the contradiction resolved itself entirely into a mistake about time, and a defect of memory about the chain. If the old man got up earlier than he thought, the whole thing came to nothing.

He was further pressed to explain why he did not get up when he heard the cries. His answer was, because they stopped. He said that he did not send for the police in the morning because it did not occur to him. "I was looking for her back every other minute, always expecting that she had gone away with some of her friends. I thought she would come back. It never occurred to me trouble, or murder, or anything of the kind." ..." I looked for her always coming back, and thought that if there had been anything,—drink, or anything—going, that she might have been enticed out with friends, yet she would be back." No other evidence whatever against old Fleming, and nothing that could even attract suspicion, was discovered in any other part of the inquiry. One or two trifling circumstances were brought forward, but they were so slight that they proved nothing except the closeness of the scrutiny to which the matter had been subjected. A bag was found in old Fleming's room, which had a small mark of blood upon it; but the mark was a very small one, and might have been caused by any trifling accident. There was also a little blood on one or two of his shirts; but the same observation applied to them. Two or three witnesses, called for the prisoner, deposed to having heard the deceased use expressions which, it was suggested, implied that she had some cause to complain of his conduct. Mary M'Pherson said that Jessie M'Pherson had told her that "her heart was broken with the old man. He was so inquisitive that the door-bell never could ring but he had to know who it was." A Mrs. Smith said that she asked Jessie M'Pherson how she was in Fleming's family? She said, "I don't feel very happy or comfortable; for Fleming is just an old wretch—an old devil." She added, "I cannot tell you the cause, because Sandy" (Mrs. Smith's husband) "is with you." Whether "the cause" meant the cause of Fleming's being an old wretch, or the cause of her looking ill, on which Mrs. Smith had made a remark, does not appear. Another witness, Elizabeth Brownlie, spoke of Jessie M'Pherson having observed that the old man remarked everything, and said that she spoke of him on one occasion as "the old devil." That he was rather too inquisitive about her proceedings appears to have been the only definite complaint she made of him. All this, which, in an English court, could not have been given in evidence, is a long way from the point, and far too minute to build any inference upon in a matter of such importance.

Such was the evidence as it affected Fleming. It his evidence were believed, it proved, as against the prisoner, that the murder was committed by some other person than himself, at four on the Saturday morning. The great point was to show that the prisoner was that person. When apprehended, she was, according to the Scotch practice, examined at length before the sheriff substitute. She said that she last saw JessieM'Pherson on the 28th June (a week before the murder); that she was not in or near Fleming's house on the 4th July; that on that evening she went out with a Mrs. Fraser, and came home and let herself in by a latch-key at about a quarter-past eleven. On the stairs one John M'Donald met her. She then went to bed with her child. When she got up she went out for some coals; and when she came back she found that a Mrs. Campbell, who lodged in the house, had dressed her child in her absence. The greater part of this was contradicted by Mrs. Campbell, her fellow-lodger. She said that she saw the prisoner dressed to go out about ten; that when she was dressed, Mrs. Fraser came in, and shortly afterwards she heard the outer door shut. She then went to bed, and lay awake some time, to be ready to let in M'Donald, the lodger, and also Mrs. M'Lachlan. M'Donald (at the time of the trial in the East Indies) came in about eleven, but the witness saw nothing of Mrs. M'Lachlan till nine in the morning. She woke at half-past five, heard the child crying, found it in bed alone, and dressed it. It afterwards fell asleep, and she put it into the bed again. She said there was no latch-key (check-key the witnesses called it), and never had been one, and that in consequence she and the prisoner had to let each other in. Upon the matter of the latch-key the witness was confirmed by a Mrs. Black, who proved that on the Saturday the prisoner asked her, amongst other things, to " call at a smith's to get a check-key sorted for her front door." About five in the afternoon she asked a Mrs. Adams to come in at nine or ten to look after her child, as she was going to see Jessie. Mrs. Adams said, "I asked her why she went so late? She said then that it was the time she has got alone, as the old man went to bed about that time." It thus appears that the whole of her statement as to where she was on the night of the crime was proved to be false, and that on that night she was absent from home, and that she intended to go and see the deceased.

The next point was of the greatest importance. In her declaration before the sheriff, the prisoner said that on the Friday evening, about a quarter-past eight, old Fleming brought a parcel to her house containing plate, which he directed her to pawn in the name of M'Kay or M'Donald. She was to raise £3, 10s. on the plate, or more if she could get it. Fleming said that he wanted some money to go to the Highlands. She accordingly went on the Saturday, in the middle of the day, to a pawnbroker, named Lundie, and borrowed from him £6, 15s. on the plate, which she pledged in the name of M'Donald, as suggested by old Fleming. At a quarter to three old Fleming called at her house for the money, and on receiving it offered her £5 for having done the errand. She refused, but took £4 in notes given by the pawnbroker, with which she paid her rent to a Mr. Caldwell. She added, that at that time she had in the house £5, 10s. of her own, being the remainder of a sum of £11, 10s. given her by her brother some time before. It was true that she pledged the plate at the time, and place, and for the amount stated, but James Fleming denied totally that part of the evidence which related to him, and several very strong observations occur upon it. If he had intended to steal his son's plate, there could be no possible reason why he should make Mrs. M'Lachlan an accomplice. He had every opportunity of pledging or disposing of it by himself, if he were so inclined. There was no proof at all that he wanted to go to the Highlands. If he had, he would not have given the woman £4 out of £6, 15s., for such a service as pledging the plate; and besides, he had at the time no lea than £180 of his own in two banks—£150 in one, and £30 in the other; this was proved by the bankers' clerks. It is incredible that under such circumstances he should act in the manner described by the prisoner. There was also strong evidence to show that the prisoner's circumstances at the time in question were not as she represented them to be. It was true that her means were good for a person in her station in life. Her husband made 30s. a week, and they had only one child, and her brother was in the habit of giving her money after every voyage that he made; but notwithstanding this, a Mrs. Adams proved that on the forenoon of the Friday the prisoner sent her to pawn a looking-glass for 6s., with which she was to take a cloak out of pawn. This was done, and it is hardly likely that it would have been done if she had had £5, 10s in ready money in the house at the time. Mrs. Adams also proved that on the Saturday the prisoner sent her to another pawnbroker's (Clark's) to get her husband's clothes out of pawn, and gave her £2 for that purpose, of which she paid £1, 16s. 6d; and that on the Monday she sent her again to Clark's for other clothes, with 16s, of which she paid 15s. 9d. She also paid her rent, or part of it (it is not stated which, but £4, 19s. was due), to a Mr. Railton, on the Saturday, between eleven and twelve. Mr. Railton was sure of the time, because he had to go to the Royal Bunk before twelve, and it was paid before he went to the Royal Bank. The result is, that before the Saturday morning her husband's clothes and other articles were in pawn; her own cloak was in pawn, and she had to raise money on a looking-glass to redeem the cloak; and she owed nearly £5 for rent, for which application (though not pressing application) had been made. On the Saturday she took all the things out of pawn, and paid the rent nearly three hours before the time when, according to her statement, old Fleming gave her the £4. She thus paid in the couise of the Saturday morning either £7, 11s, 8d. or £6, 12s, 3d, according as she paid the whole or only part of the rent, at a time when, according to her own account, she had only £5, 10s. in the house. It is hardly possible to draw from all this any other inference than that she was almost destitute on the Friday, stole the plate on the Friday night, and pawned it for her own use on the Saturday. If this be true, it is all but conclusive, especially when it is taken in conjunction with the incredible story about old Fleming.

The evidence, however, goes much beyond this. On the Saturday the prisoner bought a tin box, which she brought away from the shop on the following Tuesday, and which appears, from the evidence of a great number of witnesses through whose hands it passed, to have been taken to Ayr first, and afterwards to have been brought by the prisoner's husband to Greenock, to the house of Mrs. Reid, his sister. It contained several dresses, which were identified as the property of Jessie M'Pherson, by persons who were well acquainted with them. The prisoner's account of the matter was that Jessie M'Pherson sent her these dresses on the Friday; some to be mended, and others to be dyed. But when she heard of the murder she felt frightened at having the property in her possession, and sent them down first to a Mrs. Darnley, at Ayr, and then by her husband to her sister-in-law, at Greenock, that they might be out of the way. She added that, when her husband heard of her having the clothes, he wished her to go to the procurator-fiscal on the subject, but she was frightened. The whole of this story is highly improbable, though, from the nature of the case, it could not be contradicted by independent evidence. It involves an admission that she had the clothes of the murdered woman in her possession and tried to conceal them.

Besides the evidence as to the clothes of the deceased woman, important evidence was given as to the condition of the clothes of the prisoner. On the Saturday she sent a girl named Sarah Adams (the daughter of the woman who took the goods out of pawn) to the Glasgow station of the Hamilton Railway with a box, which was to be sent to Hamilton, and was sent to Hamilton accordingly, addressed to Mrs. Bain to be left till called for. On the following Tuesday or Wednesday the prisoner called at the Hamilton station, and took the box away in her own name. She then went to the house of a friend named Chassels, remained there for some time, had some tea, and left the house carrying a bundle, which was probably composed of the contents of the box, as she got Mrs. Chassels' son to take the box itself, which was empty, to a saddler's, to be mended. She was seen shortly afterwards by some other witnesses carrying a bundle, on the road to a place called Meikleairnock; and a little girl, called Margaret Gibson, pointed out to her a place called Tommylin Park, where she could get some water to drink. She saw her go in the direction of the park. In the afternoon a little boy, a younger son of Mrs. Chassels, met her returning into Hamilton. He did not see that she was carrying anything, but she gave him a handkerchief, which she said she had picked up, and which was like the one in which the bundle had been wrapped. On the Sunday, Margaret Gibson was in Tommylin Park, and saw some flannel clothing "thrust in at the root of the hedge." She pulled it out, and found it all over blood. She was frightened and ran away, but came back on the Monday with another girl, called Marion Fairlee. She afterwards found some wincey and a number of pieces of coburg. A flannel petticoat was also found in the neighbourhood. These articles were identified by Mrs. Adams as part of the prisoner's clothes. She knew the petticoat from having washed it. The prisoner's account of the transaction was that she went down to Hamilton to see a friend, whose name (she had been lately married) she believed to be Bain, but whom she could not find. She did not explain why she took clothes with her; though she owned she did take clothes, but not those that were found. She also denied giving the handkerchief to young Chassels. It is superfluous to point out the lame and unsatisfactory character of this account. It is, indeed, no account at all.

There was a further point about the prisoner's dress. She had a brown merino dress, which had flounces to it. Jessie M'Pherson also had a brown merino dress, which had no flounces. On the Saturday, when Mrs. Rainy got the prisoner's own brown merino dress out of pawn, the prisoner had on another brown merino dress, which she took off, saying she would have it dyed black, and putting on her own dress. She had the other dress dyed black, and it was identified as Jessie M'Pherson's by two witnesses, who were perfectly familiar with her clothes.

The prisoner had also some crinoline wires, which she gave to Mrs. Adams on the Saturday, saying that her child had burnt the petticoat to which they belonged. These wires, on being microscopically examined, were found to be stained with blood.

The only remaining piece of evidence against the prisoner was that when she went out with Mrs. Fraser, on the Friday night, she gave her a glass of rum. Mrs. Campbell, her lodger, saw her go to a press in her (Mrs. Campbell's) kitchen, which contained a bottle and a handbasket. On the following Monday she missed the bottle, and a bottle of similar size, shape, and colour, and with a smell of rum about it, was found at the house at Sandyford Place after the murder.

It should be added, with regard to the bloody foot-prints on the bedroom floor, that the prisoner had a high instep, and that her feet were about the size of the marks, and might have made them. They could not have been made by the deceased, whose feet were larger; nor by old Fleming, whose feet were not only larger, but also too flat. One of the marks was very perfect, because it was so close to the window that the person who made it must have been standing, and must, therefore, have made a full impression. It should also be borne in mind, that the prisoner knew the house at No. 17, Sandyford Place, as she had been formerly in service there herself.

This was the case against the prisoner. The evidence in her favour consisted entirely of the cross-examination of old Fleming and the facts stated by the witnesses in relation to it and him, and already noticed. There was, however, one exception. A policeman, named Colin Campbell, deposed that on the Saturday night he saw two women come out of 17, Sandyford Place, by the front door, about half-past eight or a quarter to nine. He saw them well. They stood about five minutes, and one went away, and the other turned back. He added that he heard the door shut, and saw a woman running to shut it. He was quite sure that the prisoner was not one of the women. He was sure of the day, because he posted a letter to his father that night; and he appears to have been sure of the house, because he was coming out of No. 18, and they out of No. 17. This, if true, contradicted the whole theory of the prosecution; because, according to old Fleming, there was no living woman in the house on the Saturday evening to shut the door, and no one came to the house that night, except a young man named Darnley, who wanted to see Jessie M'Pherson. The policeman had no motive to tell an untruth, and policemen are very naturally less likely than any other class of men to perjure themselves gratuitously, especially on behalf of accused persons. It is, however, possible, as Lord Deas pointed out in summing up, that Campbell might be mistaken either in the night or in the house. He said that he never thought of the matter till after he heard of the murder; and it is by no means unnatural that, being strongly impressed with it, and remarking the incident of seeing the women at the time or place, he may quite innocently have been led to think that he had seen them at the time and place. When a crime has attracted great attention and strongly excited the imagination of particular people, such mistakes are by no means uncommon.

Laying aside this evidence, the case against the prisoner stands thus. The murder was probably committed by a woman with a foot like hers, on Saturday morning, towards four o'clock, for the sake of stealing the plate and dresses. She was out of her own home all that night. She was next day in possession of the plate and dresses. Her clothes were stained with blood, and she took steps to conceal them. She gave a false account of the way in which her time was spent, a barely credible account of the way in which she got the plate, an improbable account of the way in which she got the clothes, and something which amounted to no account at all of her reasons for disposing as she did of her own clothes. The elaborate evidence given at the trial all condenses itself into this short statement, and no one can be surprised that after a quarter of an hour's consideration she should have been unanimously convicted by the jury of murder and theft.

It might have been expected that here the matter would close; but this is so far from being the case, that the most curious part of the story yet remains to be told. After her conviction and before her sentence, her counsel, by the permission of the Court, read a long paper, which she must have prepared either before or during the trial, in which she professed to give a full account of the whole transaction. It was entirely at variance with her former statement, and flatly contradicted the evidence of the only material witness in her favour—the policeman, Colin Campbell. Her account was in substance as follows:—She went to Sandyford Place about ten on the night in question, and found the old man and Jessie M'Pherson sitting together in the kitchen. They had some words, in the course of which Jessie said, "I have a tongue would frighten somebody if it broke loose." After this, they sent her out to get some whisky, which she tried in vain to get at a shop which she described but did not name. When she came back, the old man let her in, and they went into the kitchen. She asked for Jessie; he went out into the passage, and she looked into the laundry, and saw Jessie lying on the floor, bleeding from a wound on the brow. The old man said it was an accident; he had not meant to hurt her. She offered to go for the doctor, but he said it was unnecessary. She then got Jessie to bed, having contrived to recover her partially. She sat by her for the greater part of the night; and in the course of it, Jessie told her that the old man had taken liberties with her one night when he was drunk, that she had threatened to tell his son, and that they had ever since been on bad terms. She gradually got worse, and the prisoner got her into the kitchen, and laid her before the fire. The old man (who was sitting up) swore her on the Bible to secresy as to the whole transaction; and, after a time, she insisted on going for a doctor, as her friend was getting worse. She went upstairs for that purpose, and whilst there heard a noise in the kitchen; and on going down, found the old man chopping the deceased about the head with a cleaver. She died, and he dragged her into her own room. The prisoner and the old man together cleaned up the blood ; he persuaded her that they were both in equal danger from what had passed, and told her to get rid of the dresses by sending them to some address by railway, to be left till called for, and to pawn the plate in a false name. She had got her own gown all draggled and wet, and threw Jessie's gown over her, in order to go home, which she did about nine in the morning.

The judge, in passing sentence, declared that he believed every word of this story to be utterly false, and that he did not think that old Mr. Fleming had anything at all to do with the murder; and he added that his experience was that persons convicted of serious crimes invariably lied. "I never knew an instance," he said, "in which the statements made by prisoners after their conviction were anything else than, in their substance, falsehoods:" an observation which will be endorsed by every one who has had any experience on the subject.

On reviewing the whole case, it certainly does appear that it would be very hard measure indeed to believe old Mr. Fleming to be guilty on the strength of the prisoner's statement. It is full of the most glaring improbabilities. In the first place, she said nothing about Fleming's guilt till after her own conviction; but, on the contrary, denied all knowledge whatever of the murder, and accounted for her possession of the plate by the incredible story about Fleming's bringing it to her to be pawned. In the next place, it is clear that, according to her own account, she was either a principal in the second degree, or at least an accessory after the fact; for she not only tried to conceal the crime, but tried to turn it to her own advantage by appropriating the money for which the plate was pawned, and having her friend's dress dyed for her own wear. Thus, taken at the best, the story is the uncorroborated evidence of an accomplice, given under the most suspicious circumstances conceivable. Besides this, the story bears every mark of having been concocted during and after the trial. It accounts for every fact which was given in evidence, small and great, on none of which had her previous declaration thrown any light whatever. If her story had been true, and if, according to the case now set up for her, she was not in want of money at the time, is it conceivable that she would have run the risk of concealing the murder of her intimate friend, and have gone to great danger to do so, for the sake of £7?  That a very wicked person might commit a murder for very trifling booty is what daily experience teaches us; but it is hardly conceivable that the unwilling witness of a most brutal murder, committed on her most intimate friend, should coolly undertake the risk and guilt of concealment for such a consideration. The conduct attributed to old Mr. Fleming is as extraordinary as that which the prisoner asserts of herself. If he did commit the murder in the way described, and if he meant to throw the blame on robbers, he would in all probability have taken the first opportunity of discovering the body and sending for the police. He could have done so without producing any suspicion. His not doing so for three whole days is just what might be expected from the sluggishness and torpor of extreme old age, but is utterly inexplicable if he were really guilty. He must have known that when his son came home on the Monday, the body would be found, and that, in the absence of explanation, suspicion would fall on him—a suspicion which would be greatly removed if he made the discovery and gave the alarm at once.

It must, however, be admitted that this sort of speculation is unsatisfactory. If a man of eighty-seven commits a murder, it is very difficult to say what he will or will not do, and no doubt the absence of all steps to find out what had become of the woman may be attributed to conscious guilt as well as to torpid irresolution. The true way of viewing the case is to look at the broad facts, leaving on one side matters which are susceptible of different interpretations. Those broad facts can hardly be said to bear at all upon the man, whilst they all but demonstrate the guilt of the woman.

The circumstances of the case suggest several observations on the general subject of criminal trials. As a matter of course, much was said about circumstantial evidence. The counsel for the prisoner, of course, insisted that such evidence is fallible, and referred to cases in which it had led to wrong convictions. The counsel for the Crown and the judge, equally as a matter of course, observed that circumstantial evidence is often better than direct evidence; that circumstances cannot lie; and that a chain of circumstances, fitting to each other, are more convincing than direct proof. All such remarks are radically wrong. They proceed upon a distinction which is, in the fullest sense, a distinction without a difference. There is no real distinction between circumstantial and direct evidence, and the notion that there is, is derived from a mistake as to the thing to be proved. The thing to be proved in a criminal case is that the prisoner has committed a crime. But what is a crime? Every crime, like every human transaction, is a complicated matter, made up of scores of actions, and always involving mental as well as visible ingredients. To cut a person's throat is no crime; to break open a house and carry away goods is no crime; to set fire to a rick is no crime; though murder, burglary, and arson are heinous crimes; but there can be no murder without malice, no burglary without a felonious intent, no arson unless the act is unlawful and malicious. Thus the cutting of the throat or the taking of the goods are themselves only circumstances from which the commission of the crime is inferred. Besides this, every action is made up of an innumerable quantity of bodily motions combined into a system. The person who murdered Jessie M'Pherson took up the cleaver, walked across the room, struck many blows, took the plate and the dresses, and (probably) left the house. No one of these acts was in itself the murder. All put together, made it up; though some of them might have been absent without destroying the murderous character of the transaction.

Thus, a murder, like every other crime, and, indeed, every other action, is composed of a great number of circumstances extending over a greater or less length of time, and the proof of it must be circumstantial, that is, it must consist of evidence of some or other of the different circumstances of which the crime is composed. Of course some circumstances are more important than others. If a man is seen to stick a knife into another person's breast, that is a stronger circumstance than if he is seen pulling it out; and this would be stronger than if he were seen standing over the dead man with a bloody knife in his hand; but there is no such distinction between the three cases. Each circumstance is compatible with innocence—neither would in itself be more than evidence of the crime. Hence, it is a mere abuse of language to contrast the force of direct and circumstantial evidence. All that can fairly be said is, that some circumstances are more important than others, and raise a stronger presumption of guilt; but there is no more reason for refusing to infer the existence of the more important links in the chain from the existence of less important, than there is for refusing to draw the converse inference. Intention and malice are inferred from the fact of stabbing. Why may not the fact of stabbing be inferred from the possession of a bloody knife and the property of the murdered man? From seeing a man take a knife out of another's throat, you infer that he put it in: why not infer that he put it in from the facts that it was his knife, that he was in the room with the deceased alone? This may appear to be a mere matter of language, but it is not so in reality. Phrases have a marvellous influence; and the phrase, "What is called circumstantial evidence," uttered with an effective air of contempt, and backed up with one of the stock stories upon the subject (like the man in Hale's Pleas of the Crown, who did not murder his nephew), produces at times a considerable effect. It would be a good thing if the phrase were altogether laid aside as useless, which it would be if the true nature of crimes and of evidence were generally understood. Evidence is nothing more than grounds for reasonable guesses, and crimes are collections of circumstances connected together, the proof of any one of which is a reasonable ground for guessing that the others or some of them existed.

A more practical observation arises upon the Scotch practice, exemplified in the present case, of questioning the accused. It is difficult to understand how it can be reasonably objected to. In our own country it is illegal merely by force of habit. In the State Trials down to the beginning of the eighteenth century it was constantly practised. Till lately magistrates were bound by Act of Parliament to "take the examination" of the prisoner; and it was held that this Act empowered them to question him, though the practice was not common. They are now forbidden to question him, and are restrained to telling him to say what he likes, after giving him a caution on the subject. The only shadow of a justification for this wilful neglect of the most obvious source of information is a sentimental notion that a prisoner ought to be protected against conviction by every conceivable means. The law seems to think that to catch him in his own lies would be like seething a kid in its mother's milk. When a bill to render prisoners competent witnesses was before the House of Lords, Lord Chelmsford declared with horror that such a measure would double the severity of the criminal law. It did not appear to occur to his lordship that if the "severity of the criminal law" means the chance that criminals will be convicted, it cannot possibly be too severe. Its perfection would be attained when no guilty person had a single chance of escape. If "severity " means "severity of punishment," the two things have no connection. The common answer to this is the old fallacy about the one innocent man and the ten guilty; the objection to which is that our present system is in the habit of occasionally convicting an innocent man that many guilty ones may escape. It is impossible to doubt—and every day's experience shows it—that it is a great advantage to an innocent man to be questioned. Old Mr. Fleming was questioned in the present case, and if he had not been questioned, the suspicion against him would have been stronger. Giving an account of himself and his doings, which was corroborated in various points, he was released. On the other hand, the falsehoods which Mrs. M'Lachlan told under examination were amongst the strongest of the circumstances against her. Why should she not be questioned? What hardship is it upon any one to be asked where they slept on a particular night? Whether or not they pawned particular goods? If so, where they got them? Nine times out of ten an innocent man does not know the strength of his own case, and if he is ignorant as well as innocent, he may by mere stupidity and helplessness allow suspicious circumstances to pass unexplained which he could explain perfectly well.

Cornhill Magazine, November 1862.

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