Part 43 (2/2)

Moreover, the young man's cap was found _close by the spot where the a.s.sault took place_. About this there was no dispute and could be no mistake, for the prisoner confessed that the cap was his, adding, however, that he _had lent it on that night to one of the other prisoners_. The youth vehemently protested his innocence after the verdict was given.

So far as he was concerned I was _not_ satisfied with the conviction.

”Is it possible,” I asked myself, ”that there can have been a mistake?” I did not think that in the excitement of such a moment, and during so fearful a struggle with his antagonist, with their faces _so close together_ that they stared into each other's eyes, there was such an opportunity of seeing the youth's face as to make it clear beyond any doubt that he was the man who committed the crime. The jury, I thought, had judged too hastily from appearances--a mistake always to be guarded against.

I invited the prosecuting counsel to come to my room, and asked him, ”Are you satisfied with that verdict so far as the _youngest prisoner_ is concerned?”

”Yes,” he said; ”the jury found him 'Guilty,' and I think the evidence was enough to justify the verdict.”

”I _do not_,” I said, ”and shall try him again on another indictment.”

There was another involving the same evidence.

I considered the matter very carefully during the night, and weighed every particle of evidence with every probability, and the more I thought of it the more convinced I was that injustice had been done.

First of all, to prevent the men who I was convinced were rightly convicted from entertaining any doubt about the result of their conviction, I sentenced them to penal servitude.

I then undertook to watch the case on behalf of the young man myself, and did not, as I might have done, a.s.sign him counsel.

The prisoner was put up for trial, and the second inquiry commenced.

It had struck me during the night that there was a point in the case which had been taken for granted by the _counsel on both sides_, and that that point was _the_ one on which the verdict had gone wrong. As I have said, I did not doubt the honest belief of the keeper, but I doubted, and, in fact, disbelieved altogether in, the power of any man to identify the face of another when their eyes were close together, as he had no ordinary but a distorted view of the features. In order to test my theory on this matter, I took the real point in the case, as it afterwards turned out to be. It was this: _Five men_ were taken _for granted_ to have been in the gang and in the field on that occasion. The difficulty was to prove that there were only _four_, and then to show that the young man was not one of the four. These two difficulties lay before me, but I resolved to test them to the utmost of my ability. The Crown was against me and the Treasury counsel.

I knew pretty well where to begin--which is a great point, I think, in advocacy--and began in the right place. I must repeat that the prisoner boldly a.s.serted, when the evidence was given as to the finding of his cap close to the spot where the outrage was committed, that it _was_ his cap, but that he had not worn it on that night, having lent it to one of the other men, whom he then named. This was, to my mind, a very important point in this second trial, and I made a note of it to a.s.sist me at a later period of the case. If this was true, the strong corroboration of the keeper's evidence of ident.i.ty was gone. Indeed, it went a good deal further in its value than that, for it may have been the finding of the prisoner's cap that induced the belief that the man whose face he saw was the prisoner's!

I asked the accused if he would like the other men called to prove his statements, warning him at the same time that it was upon his own evidence that they had been arrested, and pointing out the risk he ran from their ill-will.

”My lord,” said he, ”they will owe me no ill-will, and they will not deny what I say. It's true; I'm one of 'em, and I know they won't deny it.”

Without discarding this evidence I let the case proceed. I asked the policeman when he came into the witness-box if he examined carefully the footprints at the gate where the men entered. He said he had, and was _quite positive_ that there were the footprints of _four men only_, and further, that these prints corresponded with the shoes of the four men who had been sentenced, and _not_ with those of the prisoner.

It shows how fatal it may be in Judge, counsel, or jury to take anything for granted in a criminal charge. It had been taken for granted at the former trial that _five_ men had entered the field, and how the counsel for the defence could have done so I am at a loss to conceive. It was further ascertained that the same number and the _same footprints_ marked the steps of those coming _out_ of the field.

It went even further, for it was proved that _no footprints of a fifth man were anywhere visible on any other part of the field_, although the most careful search had been made.

If this was established, as I think it was beyond all controversy, it clearly proved that only _four men_ were in the field when the injuries were inflicted. But it might, nevertheless, be that the young man identified was one of the four. Whether he was or not was now the question at issue; it was reduced to that one point. To disprove this the prisoner said he would like the men to be called. I cautioned him again as to the danger of the course he proposed, feeling that he was pretty safe as it was in the hands of the jury. They could hardly convict under my ruling in the circ.u.mstances.

”No, my lord,” he said; ”I am _sure they will speak the truth about it_. They will not swear falsely against me to save themselves.”

The man who was alleged to have borrowed the cap was then brought up, and I asked him if it was true that he wore the prisoner's cap on the night of the outrage. He said, ”It is true, my lord; I borrowed it.”

”Then are you the man who inflicted the injury on the keeper?”

His answer was, ”Unhappily, my lord, I am, and I am heartily sorry for it.”

When asked, ”Was this young man with you that night?”

”No, my lord,” was the answer.

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