CHAPTER X.

UNCONVICTED!

Up to the time when James Ball entered the witness-box, the whole case had been dead against the prisoner. Even the grave doubts which the cross-examination raised about the housekeeper's veracity had passed unsubstantiated by any further evidence or proof; and the cook's story of the footstep on the stairs died out of all reckoning in the modicum of balance left in favor of the accused man when Davis, the chemist, had closed his evidence. But when his luckless assistant got down, after making such astounding admissions, we breathed again, and hopes that had been trampled under foot rose once more with renewed buoyancy. The rigid face of Serjeant Donaldson relaxed into anxious gravity, and the frank, genial countenance of Mr. Forster--Hugh Atherton's contemporary, and at whose side he had fought many a legal battle--shook off its cloud as he sat down and conferred with his senior colleague; whilst I heard a deep sigh of relief burst from Merrivale as he uttered, "Thank God, we have got over _that_ rock!"

Then Donaldson rose. I think I hear and see him still, that grey-headed serjeant, with his rugged Scotch features lighted up by all the earnestness of his will, all the acute intelligence of his mind, as he turned to the jury, and in a voice tremulous with emotion, though it failed not to set forth the firmness of his purpose, and the honest conviction of his soul, opened his defence of Hugh Atherton.

"Though standing at this bar," said Serjeant Donaldson, "with a heavy cloud of accusation overshadowing his hitherto stainless name, though branded by public opinion with the foul epithet of murderer, I can still call Mr. Atherton 'my friend' without a flush of shame; I can yet take him by the hand and feel proud to hail him brother by profession, companion in the same vocation. If," said the Serjeant, raising his voice and looking boldly around him, "the last witness had never been placed before you and made the remarkable revelation which you have all heard, I would still indorse what I have just said, and assert to you, my lords and gentlemen of the jury, my deep and heartfelt conviction of the innocence of the prisoner. But I have other and better grounds upon which to plead before you to-day--the only grounds upon which you can legally and conscientiously find a verdict."

He then proceeded to review the evidence, pulling it to pieces, and cutting right and left into every deposition, showing up the flaws, attacking _sans ménagement_ the character and veracity of the witnesses, dealing blows with no gentle hand on every side, and evidently lashing "his learned friend the Solicitor-General" into a state of suppressed fury; the whole drift and gist of his argument going to prove that, unless the fact of the prisoner's visit to the chemist's shop in Vero street did, to the minds of the jury, involve as a necessary consequence his purchasing the paper of strychnine, that also being satisfactorily established by conclusive {88} evidence, no verdict against the prisoner could be found. On the other hand, the last witness has positively declared that the strychnine had been purchased under false pretences by a female, and that on the following day hush-money had been sent to and received by James Ball not to identify that woman who bought the poison. Further, he should presently call a witness who would corroborate all that had been disclosed by James Ball--one whom he, Ball, had evidently considered as effectually silenced; one who, though but a boy, had given a very steady, consistent, and lucid account of what had transpired on the evening of the 23d and on the following day. After commenting further upon this, and touching pointedly upon the curious coincidence of my rencontre with the woman in Vere street and the visit of the woman to the chemist's shop, he wound up his address: "There has been question today, gentlemen, of one whose name should never have been dragged before your notice, but who, in her agonized wish of doing her feeble part in clearing _him_, her betrothed husband, from the foul charge laid on him, has besought us, who are engaged in his defence, not to spare her, not to deprive her of taking her share in the testimony we shall bring forward in his favor. Gentlemen, this noble-minded girl. Miss Ada Leslie, will tell you in what terms the prisoner at the bar used to speak of his deceased uncle--the only guardian and father whom he ever remembers--in that intimate communion which exists between a man and the woman whom he is going to make part of himself. I need add no more. Providence has shaken from under your feet the only ground upon which you could condemn Mr. Atherton; Providence has, to my mind, pointed out the road along which further inquiries into this most heinous and wicked murder can be pursued. The same almighty and just God will enlighten your understandings and bring your minds to a righteous conclusion upon the case before you. But, gentlemen, although as I said at first starting, we have better grounds than those of private conviction upon which to urge the prisoner's innocence--viz., those of proof and evidence--still I cannot but think you all feel with me that, as you look at him standing there, as you remember the tones of his voice, so familiar to us in this court, urging upon us the arguments of a powerful mind, thoroughly healthy in its moral tone, and the pleadings dictated by a heart whose impulses were intrinsically generous and humane, whose guileless soul--and I crave his pardon for uttering these words in his presence--shone out of his honest eyes, and whose blameless life was openly known to all and clear as the noonday--I think, if the evidence had been other than it was, or than that which you are going to hear will be, you would still be ready to exclaim, 'That man _cannot_ be guilty of the crime imputed to him; _who_ is innocent if _he_ is proved guilty?"

I had no idea that Ada would be in court, far less give evidence; and I concluded she had not mentioned it to me lest I should object or be distresses on her account. The sensation was tremendous in court when she entered the witness-box, accompanied by her mother. The latter's agitation whether affected or real, seemed very great, and the frequent application of her handkerchief to her eyes betrayed she was crying. How Ada had got her there at all was a wonder; how she remained silent _when_ there, was a greater marvel. Can I ever forget her as she stood there, that tall slender girl, with her pale colorless face of calm and high resolve, the dark shadows beneath those eyes that looked as if now they never slept, but with the steadfast light of deep, devoted affection shining in them as they fell upon Hugh; her whole figure quivering with emotion, and her clasped hands leaning upon the table before her? One look at Hugh, and then she returned to the Lord Chief-Justice. I saw the {89} undisguised rush of sympathy and of interest flash across his countenance as his gaze met hers; and he leaned towards her with the courteous attention of the innate gentleman that he was.

"My lord," she began, in tones that at first were scarcely audible, though peculiarly sweet, but which rose and deepened as she went on, "I have come here because there is something I wish to say to you, although I know you think _he_ is innocent; but still I had best say it. For many months past I have known every thought of his heart; there has been no secret kept back from me. My lord, he loved that poor murdered man very tenderly, even as he would have loved his father had he lived, and he never spoke of him but with kindness and affection. It was only on the very day it happened that he was talking with me of the future. We were to have been man and wife--oh, I trust in God we shall still be!--and that day he, my Hugh, said how he was looking forward to the time when we should have a home of our own, and he could win his uncle away sometimes from his solitary life, and make him come to us. Do you think," she said, turning with passionate suddenness to the jury,--"do you think he could say that to _me_ and an hour afterwards kill the old man? do you think that of him who never bore an unkindly thought even to a dumb animal?"

And then her womanly timidity seemed to come back, or physical excitement overpower her; and when Mr. Frost, a young and rather conceited-looking man, rose with a view doubtless to cross-question her, the Solicitor-General waved him back, for she had sunk on the chair placed for her.

Then I heard, and hearing it my heart seemed like to break, a heavy groan burst from the prisoner's lips--the first sign of deep emotion that had escaped him during those long weary hours of suffering and suspense; and I law him stretch out his arms toward her with a wild movement of unutterable love. Thank God, she neither saw nor heard! Merrivale hastened to her, and with her mother led her out of the court.

Jacob Mullins was then called by Serjeant Donaldson.

He said: "I am sixteen years of age, and have lived two years with Mr. Davis, chemist in Vere street, as errand-boy. I take the medicines home when made up, and make myself generally useful in the shop. I never serve over the counter. I clean the pestles, mortars, and all vessels used, but I never serve out medicines. I quite well remember the evening of the 23d. I was sitting at the far end of the shop behind the counter, polishing a brass mortar. I could see who came into the shop, because where I sat was opposite the flap of the counter, and I looked through each time any one came in. I wasn't very busy that evening. I remember a tall gentleman coming in and asking for some spirits of camphor. Master served him; Mr. Ball was in the shop. I suppose it was about eight o'clock or thereabouts. I never take much count of time, except when I have to hurry. He didn't buy anything else. I am quite sure of it; I could swear it. I was listening all the time. He was a very tall gentleman. I think it was the prisoner at the bar; he was like him, but he had his hat on."

Baron Watson: "Let the prisoner put on a hat."

Witness: "Yes, that is the gentleman. I could swear it is the same."

Serjeant Donaldson: "What happened next?"

Witness: "A few minutes after the gentleman went out, a lady came in. I did not see her face. She had on a thick veil. She asked for a grain of strychnine. My master was out of the shop. Mr. Ball said to her, 'That's poison; I daren't give it you.' 'Oh,' says she, 'it's all right. It's for my husband to try on a dog. He's a doctor.' 'A doctor!' says Mr. Ball; 'where does he live?' {90} 'Just round the corner--Mr. Grainger, at the top of Vere street 'All right,' says, Mr. Ball; and goes to the drawer where the poisons are kept, and unlocks it, and I see him weigh it out and put it up.' 'How much?' say a she; 'A shilling,' says he; 'and I shall come round presently and see if it's all right.' 'Very well,' says she; 'come now if you like.' 'No, by-and-by,' says Mr. Ball, 'when the master's back.' On that she went out. I couldn't swear to her, nor to what she wore. I never notices ladies' togs. She had a veil on--that's all I know. I went home soon after nine that evening. Mr. Ball sleeps in the house. The next day we heard that old Mr. Thorneley of Wimpole street had been poisoned by strychnine; and then, that the poison had been bought at our shop. Everybody was talking of it who came in. I went up to Mr. Ball when we were alone in the shop at dinner-time, and says I, 'It's along of that strychnine that was bought last night here. I guess, as the murder's been done.' 'Hold your confounded tongue.' says he, 'or we shall get into a precious mess.' He jaws awful at me sometimes, and I'm afraid of him; so I said no more and kept aloof from him, for he looked terrible black all the afternoon. At five o'clock the postman brought in a letter for Mr. Ball. He was in the parlor having his tea. I called out there was a letter for him, and he came into the shop. I saw him open the letter and take out a banknote. 'My eyes!' says I, 'you're in luck to-day, Mr. Ball.' He was reading the letter. With that, he turned on me as fierce and red as a turkey-cock. 'You young viper,' says he, 'if you go blabbing about my affairs I'll get you discharged as sure as I am standing here!' I thought he'd have killed me. Why haven't I told this before? Because nobody's asked, and because I have been frightened of him. He's given me money several times lately, and mother's been ill, and--" (Here the witness broke down and began to cry.) It was no use the gentleman (the Solicitor-General, who was cross-questioning him) trying to bully him. He'd told the truth; it was true as gospel. He'd take his oath any day. He could and did swear to it all. Nobody had given him a farthing except Mr. Ball. He'd only told this to a gentleman a few days back who had spoken to him and then served a paper on him to appear to-day. The gentleman had told him afterwards he was a detective officer.

This was the pith of what Jacob Mullins deposed. In vain did the Solicitor-General try to badger and browbeat him; he stuck like a limpet to the same story. Confronted with James Ball, only the same results produced. Serjeant Donaldson, at Merrivale's whispered instigation, tried to bring out of them both a clearer identification of the person who had bought the strychnine, but in vain. Only Mullins, in reply to a query as to whether she spoke like a foreigner, said he couldn't just exactly tell, but she seem to talk rather funny. Confronted at the prisoner's request with Mrs. Haag, became confused, and said he didn't think it was the lady; it might be and it mightn't; was sure he never could point her out for certain. But although the person who did buy the strychnine had not been identified, the fact that Hugh Atherton did not buy it was satisfactorily proved, and that was matter for the deepest thankfulness.

The two detective officers Keene and Jones were next examined. To what is already known the following was added: Ten years ago a man of the name of Bradley had been convicted at the Old Bailey of burglary at Mr. Thorneley's house in the City, and sentenced to fourteen years' penal servitude. Inspector Keene had been employed in the case, and had been helped principally by anonymous letters, giving information which had led to the detection of the burglar. Bradley on being captured had hinted that he knew to whom he was indebted for {91} his apprehension. Thinking to ferret out some accomplice, Inspector Keene had shown him one of the anonymous communications received, and he had immediately identified the handwriting as his wife's. He then confided to Inspector Keene that she was a foreigner, a Belgian by birth; that he had married her at Plymouth, and separated from her two years after; that she was in domestic service--but where and in what capacity he would not divulge. Either fear of or affection for her seemed to be greatly influencing his mind. This same Bradley had made his escape from the penal settlement in Australia during the spring of the present year, and had been seen and recognized by Detective Jones in a small public-house in Blue-Anchor Lane, known as one of the worst haunts of bad characters in the metropolis. But unable with safety to take him into custody on the night in question, the police had lost sight of him since, up to the present time. Putting two and two together, Inspector Keene had last week travelled down to Plymouth, searched the parochial registers, found and obtained the certified copy of marriage between Robert Bradley and Maria Haag which Serjeant Donaldson had handed in to their lordships. Further, Detective Jones stated, as a corroboration of what I had already related in my evidence, that this Bradley, or O'Brian, as he now called himself, was in close communication with a man of the name of De Vos, _alias_ Sullivan, who again was in communication with Mr. Lister Wilmot; this same De Vos, or Sullivan, having formerly been in prison for embezzlement, and was now under suspicion of uttering false coin. The full relation of the conversation between De Vos and O'Brian on the night of our visit to "Noah's Ark" was not without its effect upon judges and jury.

Both the Chief-Justice and Baron Watson put repeated questions to Jones; and the Solicitor-General quite surpassed himself in his endeavors to browbeat both him and Inspector Keene. All to no purpose. Nor could that learned gentleman in his final address, after the case for the defence was closed, at that supreme moment which English law gives to the prosecutor to the crushing of all hopes raised by the evidence and appeal of the prisoner--not then could he remove the impression made on all minds that a mystery hitherto unpenetrated lay beneath the last evidence adduced.

The Lord Chief-Justice summed up. He said that, to convict a man of murder by poison, evidence must be adduced to prove that the poison was administered by the person accused; that the points of the case before them were these: The murdered gentleman, Mr. Thorneley, had on the evening of the 23d of October last received a visit from his two nephews, Mr. Lister Wilmot, and Mr. Philip Hugh Atherton, the prisoner at the bar; that a dispute had occurred between the three, relative to advancing money by the deceased to Mr. Wilmot; that the brunt of Mr. Thorneley's anger had fallen, strange to say, and from some unknown cause, upon the prisoner; that the prisoner had retaliated, and used words of threatening import, implying that the deceased would repent on the morrow what he had said that night; that at nine o'clock the housekeeper brought in the usual refreshment of which Mr. Thorneley partook at that hour--bitter ale and hard biscuits. The prisoner at the bar went to the table, poured out the ale into a glass, and handed it to his uncle. Soon after the nephews, one after the other, took leave of him and went away. Mr. Thorneley retired to rest that night about ten o'clock, without having any further communication with his household. In the morning he was found dead in his bed. On medical evidence he is proved to have been poisoned by strychnine, and strychnine is found in the few drops of bitter ale left in the tumbler out of which the deceased had drunk on the {92} previous evening. In the ale remaining in the bottle no strychnine is found. Now here arises a question and a doubt. Was there, or was there not, any ale poured out in the glass before it was brought up into Mr. Thorneley's study? The prisoner in his statement before the magistrates, and before the coroner, distinctly says there was; the housekeeper swears there was not. Is the housekeeper's evidence to be relied on? Much had been adduced that day which tended to show that at least it was doubtful. The Chief-Justice commented at length upon the evidence of the two detectives, and then said:

"The suspicions, however, of the police were directed to Mr. Hugh Atherton; and the evidence had shown that he was met coming out of a chemist's shop in Vere street on the evening of the murder, and before visiting his uncle; that upon being taken into custody the next day, an empty paper, labelled Strychnine, and bearing the name of Davis, chemist, Vere street, was found in the pocket of the overcoat which he had worn on his visit to Wimpole street. On the other hand, both James Ball, the chemist's assistant, and Jacob Mullins, the errand-boy, had sworn that the grain of strychnine entered as sold on the 23d was purchased by a female on false pretenses. Both likewise swore that the prisoner did not purchase any strychnine, but only the bottle of camphorated spirits found on his table. Then, again, James Ball had owned to receiving a letter containing hush-money, and a caution not to identify the person who had bought the poison. How, then, did the paper labelled 'strychnine' get into the prisoner's pocket? He declares he knows nothing of it; and on that point there is no further evidence. There was another mystery also which in his, the judge's, mind bore very direct influence upon the case in question; and that was the assertion of Mr. John Kavanagh that he had made and executed a will for the deceased gentleman on the night of his death, leaving the bulk of his property to a hitherto unknown and unrecognized son, which son and heir had been found under peculiar and difficult circumstances--a living confirmation of the truth of Mr. Kavanagh's statement. The question of this will was not for the present jury to consider; but simply they were to bear in mind the circumstances under which it was made, the disclosures attendant, and, above all, the fact that whereas this last will, conferring a handsome income on the prisoner at the bar, remained a buried secret from everybody, the prisoner included, save the lawyer who made it under solemn promise of silence, the other will, bequeathing a mere nominal sum to the prisoner, and cutting off with a shilling the rightful heir, namely, Mr. Thorneley's son, was lodged with the deceased's family lawyers, produced, read, and acted upon by them and the sole residuary legatee, Mr. Wilmot. This was to be considered vis-à-vis with the motive by which the prisoner at the bar was implied to have been influenced to the commission of the crime charged against him." The Chief-Justice concluded, after many more comments, by saying that, although every one must have been touched by the appearance and words of the first witness heard in the defence, yet that, as far as evidence went, they must not be allowed to weigh with any value. The one great question, deduced from all that had gone before, which the jury had to consider was, whether the prisoner at the bar had or had not purchased the strychnine in question, had or had not introduced it into the glass of bitter ale handed by him to the deceased, Mr. Thorneley. And he prayed the God of light, and truth, and justice to enlighten their minds and guide them to a right conclusion.

I have but faintly portrayed the clear, lucid manner in which that able judge summed up the evidence, or the deep feeling expressed in every tone of his voice. Cautious and prudent {93} to a degree as he had been in his language, it yet gleamed out from time to time, like a ray of sunshine, that in his own mind he considered Atherton _not_ guilty. The jury after five minutes' deliberation asked to retire.

Do you know what that suspense is,--that hanging on each minute which might bring the issues of life or death? Can you thank what it was to stand there for that hour and a quarter, seventy-five minutes, forty-five hundred seconds, when every minute seemed an hour, and every second a minute; with the dead silence reigning in the court, broken only by casual sounds now and then, that were hushed almost instantly, to so great a pitch had the interest and suspense of the whole crowd collected there risen; your eyes fixed upon that fatal door through which you knew the decision would be borne, with your heart throbbing in dull, heavy thumps against your breast, and your breath almost bushed and dying on your lips? So we stood that evening, the dense November fog stealing into the court, and the gas-lamps flaring garish and yellow in the thick atmosphere, waiting for the verdict. Twice over was a message sent in from the jury-room to the judges, demanding further explanation or elucidation on some point or other. And still we waited. At last the door opened, and they filed back one by one into their box, and took their seats in solemn silence, and were instantly harangued by the clerk of the court, and called upon to declare whether Philip Hugh Atherton was guilty or innocent of wilful murder. Amidst a dead hush, a stillness that was thrilling in its intensity, the foreman stood up and pronounced the verdict, "NOT GUILTY." I saw the prisoner raise his hands for one moment, and then his head drooped on his breast, and he leaned heavily against the railing in front of him. I saw Merrivale rise hastily, and, turning round, lay his hand upon Hugh's shoulder, and his counsel eagerly stretching out their bands towards him in fervent congratulation; and then was heard the Chief-Justice's voice addressing the foreman of the jury:

"The peculiarities and complexity of the case make it needful that we should ask upon what grounds you have given in your verdict."

Foreman: "We find the prisoner not guilty, my lord, on the ground that it is proved he did not buy the strychnine, and that the evidence of the housekeeper is unreliable evidence. But we think that until the mystery of the murder is cleared up, suspicion must still attach itself to Mr. Atherton."

The Chief-Justice to the prisoner: "It is usual to say whether we, before whom a case has been tried, agree in the verdict of the jury. Both myself and my brother Watson do most fully in this instance. We agree that upon the evidence brought forward to-day you could not by the criminal law be convicted; but we also agree in the remark made by the foreman that a degree of suspicion and doubt will rest upon you so long as the real perpetrator of this horrible crime is not forthcoming. As having known you under happier circumstances, I sincerely trust and pray for your sake that time may bring to light this hidden deed of darkness."

The judges rose and left the court. Then arose from all parts a savage yell of disappointment. Once before I told how thirsty the public were for another sight of the hangman and his victim; and now to snatch their prey from under their very eyes, with the stain of crime upon him, with a shadow of the gallows hanging over him, was more than they could bear. Amidst groans and hisses, amidst a deluge of the foulest epithets, he passed out of the court--UNCONVICTED. Unconvicted, but not unsuspected; uncondemned, but not unblemished. With the taint of murder clinging to him, with his fair good name tarnished by the withering breath of imputed crime, and his innocent life robbed of its {94} noblest beauty in the eyes of his fellow-men, Philip Hugh Atherton left that criminal court and became once more a free, and yet a marked man beneath his native sky. His whole position opened out clear before me in that one brief second which succeeded the closing the trial--all its future suffering and sorrow. Oh! if he would but now realize that at least one friend was true to him, that one heart warmed to him with the same affection as ever, who would devote himself to clearing away every cloud that dimmed his future! And dashing away the blinding tears that would force themselves into my eyes, I made my difficult way through the crowd and gained the outer court. A carriage stood opposite the private door, and a double line of policemen guarded a passage to it. I hurried forward. Hugh Atherton and Lister Wilmot passed quickly out, the carriage-door shut, and they drove off.

"Atherton and Wilmot!" I was saying the names aloud to myself, when I heard a mocking laugh. Standing beside me, and looking up into my face, was Mrs. Haag.

"Have you been drinking again, Mr. Kavanagh?" she said in her peculiar hard tones, and was gone in a moment. But she left what she little dreamed of leaving behind her--the indelible impression on my mind of her strong resemblance to Lister Wilmot.