282
[October 28, 1907.
of criminally disposing of the dead body. He is not here to answer for any of the acts sub. sequent to the death of that woman. These acts can only be considered by you as showing a guilty knowledge in his mind, but these are very slight evidence of guilt. Circamatantial evidence is at all times very dangerous. It is still more so when the principal, the only black act against the man is that he did not stand up to meet the charge. Gentlemen, if you convict the prisoner to-day you will, I respectfully submit do so because the evidence points to his having strangled the woman and not because he ran away and tried to dispose of her body. It was foolish and unwise to run away as he did, but I put it to you that you must not convict this man because he did not stand up to take his trial. Gentlemen, I have done. I only give you one last word of warning as to the danger of conviction in criminal cases on circumstantial evidence only. It is only quite recently the public in England have been shocked by the cass of a young Jewish barrister, Edalji, who wis convicted on circumstantial evidence of maiming horses and cattle. After strenuous efforts on the part of his friends he was released. That is only one of several cases. My learned friend, the Attorney General, will bear me out when I say that the law books teem with instances of persons convicted upon circum- stantial evidence and afterwards found to be innocent. Gentlemen, I do not say that in no cave must a man not be convicted on circum- stantial evidence. In some cases it was right that a man should be convicted on circumstantial evid-ace, but I put it to you that the prisoner cannot be ognvicted boosuse the evidenc, does not excluds a reasonable hypothesis of his innocence. Everything he did was consist- eat with his finding the body as he states. Gentlemen, of the Jury, I ask you for your
THE HONGKONG WEEKLY PRESS AND of money in her possession. I don't ask you to Gentlemen, what about the chemise? There is accept that suggestion from me, Pardon my
no decomposition of the chemise. It was seen speaking peremptorily, but I think that you within three days of the body being put in the will find a verdict of not guilty unless you think trunk, and it had not a jot of blood upon it. the case is proved. In an English court of jas. Is it suggested that Adsetts was calm and tice with the system of criminal procedure which cool and that he dressed the body in A is in force here, there are only two verdicts on a clean chemise after he cleaned it? Is there charge of murder, guilty or not guilty. In any evidence to warrant such an extravagant Scotland there is the verdict of not proven, but conclusion 8.5 that ? In your duty to in English courts where a verdict of not proven the prisoner you will find that the chemis- in would be passed, the verdict is not guilty. There- which the body was found was the chemise she fore I put it to you that you have no option had on at the time of her strangulation. We but to find the charge not proved, and bring in now come to the case where a woman in the a verdict of not guilty, Gentlemen, 1 tell you, state of mind in which she was might very well upon correction from my Lord, that in a case have committed suicide. Oming now to the of circumstantial evidence, in order to be bloodstains on the bel, there was no blood on sufficient to justify the verdict of guilty, the the sheets and no blood on the pillow. What evidence must be such 88 to exclude every does this involve? It involved that whoever reasonable hypothesis of innocence. In other killed the woman was calm and deliberate enough words, if it is possible upon the same set of to remove the sheets. Bat is that reason. circumstantial facts, that the prisoner may haveable? The prosecution overlooked that. If the murdered the woman, or the woman may have committed suicide, you must find the case not proved. Gentlemen, you can only find the prisoner guilty unless you say it is not in reason that the woman could have committed suicide. Let us examine the facts the Crown places before you. Before doing so I will just remind you of the evidence to which I adverted before my last parenthetical remark, and that is that the woman Dayton was fleeing from justice; a fugitive from Manila. She was in & state of mental excitement on the night of her death. The Crown bave proved that she was tipsy. We have it on the prisoner's evidence that she was mentally excited and naturally so. All the way from Manila she was on pins and needles lest she should be recognised. There was the man who had seen her, and she would fear that he might telegraph to Manila. Then there was the drink. This man and woman were drinking whisky in their room. There is no reason to doubt that. Then we have the evidence of Miss Leavitt, who says that Miss Dayton was drank there. All this is calculated to prove that the woman
in & state of tausion in which she
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verdict.
The Attorney-General-I propose to confine my observations in the remarks which it is now my duty to address to you in very small compass. The facts are fully before you and I think I shall have your sanotion for saying this is certainly one of the most extraordinary cases ever submitted for the consideration of a jury. I say that advisedly because my learned friend seemed to imagi e from his remarks that I wisued to criticise the conduct of the case put before you by the defence. Gentlemen, I had no intention of doing anything of the kiad. It would be presumptuous to criticise the conduct of any case which is entrusted tɔ my friend, Sir Henry Berkeley. But I am entitled to point out that the case is, in my opinion, of an extraordinary character, because you have been invited to consider alternative defences throughout.
As I said in cross-ex- amination of the prisoner we were engaged yesterday in investigating as to whether this man Was or was not the man who came
woman was strangled by violence on the bed the blood that issued from her would pass through the sheets first, and the evidence is that when they were seen by O'Sullivan they were exactly as when occupied by the prisoner and the wa man. I put it to you that you would not be warranted in saying that the bloodstains on that bed came from the deceased. The explan ation is obvious in view of the fact that the bed had been previously occupied. All that the Doctor could say was that the blood was human blood. He could not say bow fresh it was. But why should the man go to the trouble of removing the sheets. I put it to you, following the principle I have enunciated, that a man is not to be convicted on circumstantial evidence unless the evidence excludes any hypothesis of innocence. So far as I have gone it is impossible for you to say he must be guilty, According to the theory of the Crown the prisoner left the body in the box, and he left the room at six o'clock to buy a box to replace the trunk in which he had put the lody. Is that act, a rash act like that, to run the risk of discovery of the body daring his absence, consistent with the coolness and calmness and d-liberation of the man who removed the sheets from the bed before he commita the murder and who dresses the bidy in fresh garments after he has committed the murder? Gentlemen, the prosecution must not blow hot and cold. It must not say in one breath that he was a cool and calculating marderer, and in the next that he is a stupid fellow who does unnecessary things. Toe police in evidence admitted under my cross- examination that the prisoner could have got a camphorwood box within a stone's throw of the hotel, and there was nothing to take the prisoner so far away. It might be said that he desired to cover up his tracks, but he would be just as much unnoticed in a side street in the centre of the city. Gentlemen, if you come to the conclusion that it is to Hongkong and visited this particular
reasonable to believe that the bor 83
house. The man himself practically ad- alleged by the prosecution was bought mits all the circumstances short of murder merely for the purpose of putting in
and short of the sampan incident. As clothes, why should he have gone all the way to regards the theory of suicide which my Wanchai? There is the explanation of the learned friend has put up, I submit to you prisoner himself that he bought the box at that all the circumstances are against any such Wanchai because he happened to be down there theory. In the first place what was the motive of and see it. It is the common experience of men the wom in for committing suicide? According of the world that a young man after a debauch to the evidence she had some monetary disputes would wake up in a house of ill-fame and not with a woman in Manila but there were remember how he got there. Now about the box. sufficient grounds for supposing that she deliber- Did he buy it on his way from the brothel for ately strangled herself. She was according to the purpose of making a peace offering, or did prisoner's own statement in a perfect merry he buy it for the purpose of putting the clothes condition after dinner, and asked him to go in after he killed the woman? Gentlemen, round to see a lady and gentleman, Mr. and Mrs. Feist, with a view to going up the street. She my ability to pat this case before was at this house in a drunken condition and so you argumentatively, and I ask you not far as any motive is concerned the evidence to be carried away by the fluent language of rebuts it. Regarding the evidence that she was the Attorney-General, who himself may be drunk, it is extremely improbable that she com- carried away, though I hope he will not, by mitted suicide in that way, that she would the feeling which is prevalent in this country deliberately put her waistband round her that it will be a most unsatisfactory termina. neos and insert her brash so as to cause atran- tion to this trial if the prisoner at the bar begulation. Now as to the mattress,
It was acquitted. Gentlemen, no termination of a turned over and the bloodstains hidden. My trial can be unsatisfao ory in the tras s-ase of learned friend relied on the question of the the word, which is founded upon the evidence chemise, and said thers would have been blood given before
the jury.
Gentlemen, the subsequently found on the woman's body. As woman Dayton is dead, and the question tor a matter of fact we have no evidence upon that you is did the prisoner kill her; or did point. We have evidence from the ship's she strangle herself? The prisoner is not here officer that blood was flowing from the box, before you in answer to the charge of stealing or some other fluid, and it was unlikely that her money. He is not here to answer the charge the chemise would not be stained. My learn-
might have committed suicide. Having got thus far you would not be violating any principles of logic if you were to find that she was in a state of mind in which she might very well have taken her life. Let us now see what evidence there is to support the theory of suicide. Gentlemen, the corpse is found with a waistband round its neck, the waistband that she was wearing the same night, which she must have taken off when undressing. You will remember that I put the question to Doctor Macfarlane, and he acquiesced in my statement that it was the opinion of medical jurists in any question such as this that a jury have to decide between homicidal strangulation and suicidal strangulation. When the body is found to have been strangled with any article of apparel belonging to it in life, and there are no fingermarks to indicate throttling, the medical legal presumption is in favour of suicide. The body is found in a box with the waistband round its neck but no marks on the body showing violence. That might be account- ed for by the highly decomposed state of the body at the time. That was the opinion of Doctor Macafarlane, but you have to find from the facts and not on the opinion of Doctor Macfarlane. According to the case for the Crown the womau must have bled very copiously. Gentlemen, you saw the mattress held up
oa one side of which was a lot of blood. That would come from the ears and nostrils and mouth. I put it to you that if a woman were being strangled by 8 man, 8 I hava endeavoured to the bust of woman of Miss Dayton's physique, 5ft. 8 ins. in height, that there would have been a terrible struggle, and not only would there have been blood on
the mattress but on the chemise. Gentlemen, surely it is an extravagant proposal to put to you that strangulation could have taken place by violence and there
be no
blood upon the chemise. Now we come to the Doctor's evidence. I asked him if there were any marks of violence on the body? No. Any blood on the chemise? No. Is it a case for the presumption which arises from strangulation where there are no marks of violence and no marks of blood, that it is suicide? Yes. Then I took him on the question of the absence of marks and he said that might be accounted for by the decomposition of the body,
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