"'Doctor, to what do you attribute this condition of the plaintiff which you describe?'
"'Hysteria, sir; he is hysterical.'
"That waked me up. I said, 'Doctor, did I understand—I was not paying proper attention—to what did you attribute this nervous condition of my client?'
"'Hysteria, sir.'
"I subsided, and the examination went on until it came my turn to cross-examine.
"Mr. Butler.'Do I understand that you think this condition of my client wholly hysterical?'
"Witness.'Yes, sir; undoubtedly.'
"Mr. Butler.'And therefore won't last long?'
"Witness.'No, sir; not likely to.'
"Mr. Butler.'Well, doctor, let us see; is not the disease called hysteria and its effects hysterics; and isn't it true that hysteria, hysterics, hysterical, all come from the Greek word ὑστέρα?'
"Witness.'It may be.'
"Mr. Butler.'Don't say it may, doctor; isn't it? Isn't an exact translation of the Greek word ὑστέρα the English word "womb"?'
"Witness.'You are right, sir.'
"Mr. Butler.'Well, doctor, this morning when you examined this young man here,' pointing to my client, 'did you find that he had a womb? I was not aware of it before, but I will have him examined over again and see if I can find it. That is all, doctor; you may step down.'"
Robert Ingersoll took part in numerous noted lawsuits in all parts of the country. But he was almost helpless in court without a competent junior. He was a born orator if ever there was one. Henry Ward Beecher regarded him as "the most brilliant speaker of the English tongue in any land on the globe." He was not a profound lawyer, however, and hardly the equal of the most mediocre trial lawyer in the examination of witnesses. Of the art of cross-examining witnesses he knew practically nothing. His definition of a lawyer, to use his own words, was "a sort of intellectual strumpet." "My ideal of a great lawyer," he once wrote, "is that great English attorney who accumulated a fortune of a million pounds, and left it all in his will to make a home foridiots, declaring that he wanted to give it back to the people from whom he took it."
Judge Walter H. Sanborn relates a conversation he had with Judge Miller of the United States Court about Ingersoll. "Just after Colonel Ingersoll had concluded an argument before Mr. Justice Miller, while on Circuit I came into the court and remarked to Judge Miller that I wished I had got there a little sooner, as I had never heard Colonel Ingersoll make a legal argument."—"Well," said Judge Miller, "you never will."[24]
Ingersoll's genius lay in other directions. Who but Ingersoll could have written the following:—
"A little while ago I stood by the grave of the old Napoleon—a magnificent tomb of gilt and gold, fit almost for a dead deity, and gazed upon the sarcophagus of black marble, where rest at last the ashes of that restless man. I leaned over the balustrade, and thought about the career of the greatest soldier of the modern world. I saw him walking upon the banks of the Seine, contemplating suicide; I saw him at Toulon; I saw him putting down the mob in the streets of Paris; I saw him at the head of the army in Italy; I saw him crossing the bridge of Lodi, with the tricolor in his hand; I saw him in Egypt, in the shadows of the Pyramids; I saw him conquer the Alps, and mingle the eagles of France with the eagles of the crags; I saw him at Marengo, at Ulm, and at Austerlitz; I saw him in Russia, where the infantryof the snow and the cavalry of the wild blast scattered his legions like winter's withered leaves. I saw him at Leipsic, in defeat and disaster; driven by a million bayonets back upon Paris; clutched like a wild beast; banished to Elba. I saw him escape and retake an empire by the force of his genius. I saw him upon the frightful field of Waterloo, where chance and fate combined to wreck the fortunes of their former king. And I saw him at St. Helena, with his hands crossed behind him, gazing out upon the sad and solemn sea. I thought of the orphans and widows he had made, of the tears that had been shed for his glory, and of the only woman who had ever loved him, pushed from his heart by the cold hand of ambition. And I said I would rather have been a French peasant, and worn wooden shoes; I would rather have lived in a hut, with a vine growing over the door, and the grapes growing purple in the kisses of the autumn sun. I would rather have been that poor peasant, with my loving wife by my side, knitting as the day died out of the sky, with my children upon my knees, and their arms about me. I would rather have been that man, and gone down to the tongueless silence of the dreamless dust, than to have been that imperial impersonation of force and murder, known as Napoleon the Great."
The modern method of studying any subject, or acquiring any art, is the inductive method. This is illustrated in our law schools, where to a large extent actual cases are studied, to get at the principles of law instead of acquiring those principles solely through thea priorimethod of the study of text-books.
As already indicated, this method is also the only way to become a master of the art of cross-examination, and, in addition to actual personal experience, it is important to study the methods of great cross-examiners, or those whose extended experience makes them safe guides to follow.
Hence, the writer believes it would be decidedly helpful to the students of the art of cross-examination to have placed before them, in a convenient and somewhat condensed form, some good illustrations of the methods of well-known cross-examiners as exhibited in actual practice, in the cross-examination of important witnesses in famous trials.
For these reasons, and the further fact that such examples are interesting as a study of human nature, I have in the following pages introduced the cross-examination of some important witnesses in several well-known cases.
Probably one of the most dramatic and successful of the more celebrated cross-examinations in the history of the English courts is Russell's cross-examination of Pigott—the chief witness in the investigation growing out of the attack upon Charles S. Parnell and sixty-five Irish members of Parliament, by name, for belonging to a lawless and even murderous organization, whose aim was the overthrow of English rule.
The principal charge against Parnell, and the only one that interests us in the cross-examination of the witness Pigott, was the writing of a letter by Parnell which theTimesclaimed to have obtained and published in facsimile, in which he excused the murderer of Lord Frederick Cavendish, Chief Secretary for Ireland, and of Mr. Burke, Under Secretary, in Phoenix Park, Dublin, on May 6, 1882. One particular sentence in the letter read, "I cannot refuse to admit that Burke got no more than his deserts."
The publication of this letter naturally made a great stir in Parliament and in the country at large. Parnell stated in the House of Commons that the letter was a forgery, and later asked for the appointment of a select committee to inquire whether the facsimile letter wasa forgery. The Government refused this request, but appointed a special committee, composed of three judges, to investigate all the charges made by theTimes.
The writer is indebted again to Russell's biographer, Mr. O'Brien, for the details of this celebrated case. Seldom has any legal controversy been so graphically described as this one. One seems to be living with Russell, and indeed with Mr. O'Brien himself, throughout those eventful months. We must content ourselves, however, with a reproduction of the cross-examination of Pigott as it comes from the stenographer's minutes of the trial, enlightened by the pen of Russell's facile biographer.
Mr. O'Brien speaks of it as "the event in the life of Russell—the defence of Parnell." In order to undertake this defence, Russell returned to theTimesthe retainer he had enjoyed from them for many previous years. It was known that theTimeshad bought the letter from Mr. Houston, the secretary of the Irish Loyal and Patriotic Union, and that Mr. Houston had bought it from Pigott. But how did Pigott come by it? That was the question of the hour, and people looked forward to the day when Pigott should go into the box to tell his story, and when Sir Charles Russell should rise to cross-examine him. Mr. O'Brien writes: "Pigott's evidence in chief, so far as the letter was concerned, came practically to this: he had been employed by the Irish Loyal and Patriotic Union to hunt updocuments which might incriminate Parnell, and he had bought the facsimile letter, with other letters, in Paris from an agent of the Clan-na-Gael, who had no objection to injuring Parnell for a valuable consideration....
"During the whole week or more Russell had looked pale, worn, anxious, nervous, distressed. He was impatient, irritable, at times disagreeable. Even at luncheon, half an hour before, he seemed to be thoroughly out of sorts, and gave you the idea rather of a young junior with his first brief than of the most formidable advocate at the Bar. Now all was changed. As he stood facing Pigott, he was a picture of calmness, self-possession, strength; there was no sign of impatience or irritability; not a trace of illness, anxiety, or care; a slight tinge of color lighted up the face, the eyes sparkled, and a pleasant smile played about the mouth. The whole bearing and manner of the man, as he proudly turned his head toward the box, showed courage, resolution, confidence. Addressing the witness with much courtesy, while a profound silence fell upon the crowded court, he began: 'Mr. Pigott, would you be good enough, with my Lords' permission, to write some words on that sheet of paper for me? Perhaps you will sit down in order to do so?' A sheet of paper was then handed to the witness. I thought he looked for a moment surprised. This clearly was not the beginning that he had expected. He hesitated, seemed confused. Perhaps Russell observed it. At all events he added quickly:—
"'Would you like to sit down?'
"'Oh, no, thanks,' replied Pigott, a little flurried.
"The President.'Well, but I think it is better that you should sit down. Here is a table upon which you can write in the ordinary way—the course you always pursue.'
"Pigott sat down and seemed to recover his equilibrium.
"Russell.'Will you write the word "livelihood"?'
"Pigott wrote.
"Russell.'Just leave a space. Will you write the word "likelihood"?'
"Pigott wrote.
"Russell.'Will you write your own name? Will you write the word "proselytism," and finally (I think I will not trouble you at present with any more) "Patrick Egan" and "P. Egan"?'
"He uttered these last words with emphasis, as if they imported something of great importance. Then, when Pigott had written, he added carelessly, 'There is one word I had forgotten. Lower down, please, leaving spaces, write the word "hesitancy."' Then, as Pigott was about to write, he added, as if this were the vital point, 'with a small "h."' Pigott wrote and looked relieved.
"Russell.'Will you kindly give me the sheet?'
"Pigott took up a bit of blotting paper to lay on the sheet, when Russell, with a sharp ring in his voice,said rapidly, 'Don't blot it, please.' It seemed to me that the sharp ring in Russell's voice startled Pigott. While writing he had looked composed; now again he looked flurried, and nervously handed back the sheet. The attorney general looked keenly at it, and then said, with the air of a man who had himself scored, 'My Lords, I suggest that had better be photographed, if your Lordships see no objection.'
"Russell(turning sharply toward the attorney general, and with an angry glance and an Ulster accent, which sometimes broke out when he felt irritated). 'Do not interrupt my cross-examination with that request.'
"Little did the attorney general at that moment know that, in the ten minutes or quarter of an hour which it had taken to ask these questions, Russell had gained a decisive advantage. Pigott had in one of his letters to Pat Egan spelt 'hesitancy' thus, 'hesitency.' In one of the incriminatory letters 'hesitancy' was so spelt; and in the sheet now handed back to Russell, Pigott had written 'hesitency,' too. In fact it was Pigott's spelling of this word that had put the Irish members on his scent. Pat Egan, seeing the word spelt with an 'e' in one of the incriminatory letters, had written to Parnell, saying in effect, 'Pigott is the forger. In the letter ascribed to you "hesitancy" is spelt "hesitency." That is the way Pigott always spells the word.' These things were not dreamt of in the philosophy of the attorney general when he interrupted Russell's cross-examinationwith the request that the sheet 'had better be photographed.' So closed the first round of the combat.
"Russell went on in his former courteous manner, and Pigott, who had now completely recovered confidence, looked once more like a man determined to stand to his guns.
"Russell, having disposed of some preliminary points at length (and after he had been perhaps about half an hour on his feet), closed with the witness.
"Russell.'The first publication of the articles "Parnellism and Crime" was on the 7th March, 1887?'
"Pigott(sturdily). 'I do not know.'
"Russell(amiably). 'Well, you may assume that is the date.'
"Pigott(carelessly). 'I suppose so.'
"Russell.'And you were aware of the intended publication of the correspondence, the incriminatory letters?'
"Pigott(firmly). 'No, I was not at all aware of it.'
"Russell(sharply, and with the Ulster ring in his voice). 'What?'
"Pigott(boldly). 'No, certainly not.'
* * * * *
"Russell.'Were you not aware that there were grave charges to be made against Mr. Parnell and the leading members of the Land League?'
"Pigott(positively). 'I was not aware of it until they actually commenced.'
"Russell(again with the Ulster ring). 'What?'
"Pigott(defiantly). 'I was not aware of it until the publication actually commenced.'
"Russell(pausing, and looking straight at the witness). 'Do you swear that?'
"Pigott(aggressively). 'I do.'
"Russell(making a gesture with both hands, and looking toward the bench). 'Very good, there is no mistake about that.'
"Then there was a pause; Russell placed his hands beneath the shelf in front of him, and drew from it some papers—Pigott, the attorney general, the judges, every one in court looking intently at him the while. There was not a breath, not a movement. I think it was the most dramatic scene in the whole cross-examination, abounding as it did in dramatic scenes. Then, handing Pigott a letter, Russell said calmly:—
"'Is that your letter? Do not trouble to read it; tell me if it is your letter.'
"Pigott took the letter, and held it close to his eyes as if reading it.
"Russell(sharply). 'Do not trouble to read it.'
"Pigott.'Yes, I think it is.'
"Russell(with a frown). 'Have you any doubt of it?'
"Pigott.'No.'
"Russell(addressing the judges). 'My Lords, it is from Anderton's Hotel, and it is addressed by the witness to Archbishop Walsh. The date, my Lords, is the4th of March, three days before the first appearance of the first of the articles, "Parnellism and Crime."'
"He then read:—
"'Private and confidential.'
"'My Lord:—The importance of the matter about which I write will doubtless excuse this intrusion on your Grace's attention. Briefly, I wish to say that I have been made aware of the details of certain proceedings that are in preparation with the object of destroying the influence of the Parnellite party in Parliament.'
"Having read this much Russell turned to Pigott and said:—
"'What were the certain proceedings that were in preparation?'
"Pigott.'I do not recollect.'
"Russell(resolutely). 'Turn to my Lords and repeat the answer.'
"Pigott.'I do not recollect.'
"Russell.'You swear that—writing on the 4th of March, less than two years ago?'
"Pigott.'Yes.'
"Russell.'You do not know what that referred to?'
"Pigott.'I do not really.'
"Russell.'May I suggest to you?'
"Pigott.'Yes, you may.'
"Russell.'Did it refer to the incriminatory letters among other things?'
"Pigott.'Oh, at that date? No, the letters had notbeen obtained, I think, at that date, had they, two years ago?'
"Russell(quietly and courteously). 'I do not want to confuse you at all, Mr. Pigott.'
"Pigott.'Would you mind giving me the date of that letter?'
"Russell.'The 4th of March.'
"Pigott.'The 4th of March.'
"Russell.'Is it your impression that the letters had not been obtained at that date?'
"Pigott.'Oh, yes, some of the letters had been obtained before that date.'
"Russell.'Then, reminding you that some of the letters had been obtained before that date, did that passage that I have read to you in that letter refer to these letters among other things?'
"Pigott.'No, I rather fancy they had reference to the forthcoming articles in theTimes.'
"Russell(glancing keenly at the witness). 'I thought you told us you did not know anything about the forthcoming articles.'
"Pigott(looking confused). 'Yes, I did. I find now I am mistaken—that I must have heard something about them.'
"Russell(severely). 'Then try not to make the same mistake again, Mr. Pigott. "Now," you go on (continuing to read from Pigott's letter to the archbishop), "I cannot enter more fully into details than to state that theproceedings referred to consist in the publication of certain statements purporting to prove the complicity of Mr. Parnell himself, and some of his supporters, with murders and outrages in Ireland, to be followed, in all probability, by the institution of criminal proceedings against these parties by the Government."'
"Having finished the reading, Russell laid down the letter and said (turning toward the witness), 'Who told you that?'
"Pigott.'I have no idea.'
"Russell(striking the paper energetically with his fingers). 'But that refers, among other things, to the incriminatory letters.'
"Pigott.'I do not recollect that it did.'
"Russell(with energy). 'Do you swear that it did not?'
"Pigott.'I will not swear that it did not.'
"Russell.'Do you think it did?'
"Pigott.'No, I do not think it did.'
"Russell.'Do you think that these letters, if genuine, would prove or would not prove Parnell's complicity in crime?'
"Pigott.'I thought they would be very likely to prove it.'
"Russell.'Now, reminding you of that opinion, I ask you whether you did not intend to refer—not solely, I suggest, but among other things—to the letters as being the matter which would prove complicity or purport to prove complicity?'
"Pigott.'Yes, I may have had that in my mind.'
"Russell.'You could have had hardly any doubt that you had?'
"Pigott.'I suppose so.'
"Russell.'You suppose you may have had?'
"Pigott.'Yes.'
"Russell.'There is the letter and the statement (reading), "Your Grace may be assured that I speak with full knowledge, and am in a position to prove, beyond all doubt and question, the truth of what I say." Was that true?'
"Pigott.'It could hardly be true.'
"Russell.'Then did you write that which was false?'
"Pigott.'I suppose it was in order to give strength to what I said. I do not think it was warranted by what I knew.'
"Russell.'You added the untrue statement in order to add strength to what you said?'
"Pigott.'Yes.'
"Russell.'You believe these letters to be genuine?'
"Pigott.'I do.'
"Russell.'And did at this time?'
"Pigott.'Yes.'
"Russell(reading). '"And I will further assure your Grace that I am also able to point out how these designs may be successfully combated and finally defeated." How, if these documents were genuine documents, and you believed them to be such, how were you able to assure hisGrace that you were able to point out how the design might be successfully combated and finally defeated?'
"Pigott.'Well, as I say, I had not the letters actually in my mind at that time. So far as I can gather, I do not recollect the letter to Archbishop Walsh at all. My memory is really a blank on the circumstance.'
"Russell.'You told me a moment ago, after great deliberation and consideration, you had both the incriminatory letters and the letter to Archbishop Walsh in your mind.'
"Pigott.'I said it was probable I did; but I say the thing has completely faded out of my mind.'
"Russell(resolutely). 'I must press you. Assuming the letters to be genuine, what were the means by which you were able to assure his Grace that you could point out how the design might be successfully combated and finally defeated?'
"Pigott(helplessly). 'I cannot conceive really.'
"Russell.'Oh, try. You must really try.'
"Pigott(in manifest confusion and distress). 'I cannot.'
"Russell(looking fixedly at the witness). 'Try.'
"Pigott.'I cannot.'
"Russell.'Try.'
"Pigott.'It is no use.'
"Russell(emphatically). 'May I take it, then, your answer to my Lords is that you cannot give any explanation?'
"Pigott.'I really cannot absolutely.'
"Russell(reading). '"I assure your Grace that I have no other motive except to respectfully suggest that your Grace would communicate the substance to some one or other of the parties concerned, to whom I could furnish details, exhibit proofs, and suggest how the coming blow may be effectually met." What do you say to that, Mr. Pigott?'
"Pigott.'I have nothing to say except that I do not recollect anything about it absolutely.'
"Russell.'What was the coming blow?'
"Pigott.'I suppose the coming publication.'
"Russell.'How was it to be effectively met?'
"Pigott.'I have not the slightest idea.'
"Russell.'Assuming the letters to be genuine, does it not even now occur to your mind how it could be effectively met?'
"Pigott.'No.'
"Pigott now looked like a man, after the sixth round in a prize fight, who had been knocked down in every round. But Russell showed him no mercy. I shall take another extract.
* * * * *
"Russell.'Whatever the charges in "Parnellism and Crime," including the letters, were, did you believe them to be true or not?'
"Pigott.'How can I say that when I say I do not know what the charges were? I say I do not recollectthat letter to the archbishop at all, or any of the circumstances it refers to.'
"Russell.'First of all you knew this: that you procured and paid for a number of letters?'
"Pigott.'Yes.'
"Russell.'Which, if genuine, you have already told me, would gravely implicate the parties from whom these were supposed to come.'
"Pigott.'Yes, gravely implicate.'
"Russell.'You would regard that, I suppose, as a serious charge?'
"Pigott.'Yes.'
"Russell.'Did you believe that charge to be true or false?'
"Pigott.'I believed that charge to be true.'
"Russell.'You believed that to be true?'
"Pigott.'I do.'
"Russell.'Now I will read this passage [from Pigott's letter to the archbishop], "I need hardly add that, did I consider the parties really guilty of the things charged against them, I should not dream of suggesting that your Grace should take part in an effort to shield them; I only wish to impress on your Grace that the evidence is apparently convincing, and would probably be sufficient to secure conviction if submitted to an English jury." What do you say to that, Mr. Pigott?'
"Pigott(bewildered). 'I say nothing, except that I amsure I could not have had the letters in my mind when I said that, because I do not think the letters conveyed a sufficiently serious charge to cause me to write in that way.'
"Russell.'But you know that was the only part of the charge, so far as you have yet told us, that you had anything to do in getting up?'
"Pigott.'Yes, that is what I say; I must have had something else in my mind which I cannot at present recollect—that I must have had other charges.'
"Russell.'What charges?'
"Pigott.'I do not know. That is what I cannot tell you.'
"Russell.'Well, let me remind you that that particular part of the charges—the incriminatory letters—were letters that you yourself knew all about.'
"Pigott.'Yes, of course.'
"Russell(reading from another letter of Pigott's to the archbishop). '"I was somewhat disappointed in not having a line from your Grace, as I ventured to expect I might have been so far honored. I can assure your Grace that I have no other motive in writing save to avert, if possible, a great danger to people with whom your Grace is known to be in strong sympathy. At the same time, should your Grace not desire to interfere in the matter, or should you consider that they would refuse me a hearing, I am well content, having acquitted myself of what I conceived to be my duty in the circumstances.I will not further trouble your Grace save to again beg that you will not allow my name to transpire, seeing that to do so would interfere injuriously with my prospects, without any compensating advantage to any one. I make the request all the more confidently because I have had no part in what is being done to the prejudice of the Parnellite party, though I was enabled to become acquainted with all the details."'
"Pigott(with a look of confusion and alarm). 'Yes.'
"Russell.'What do you say to that?'
"Pigott.'That it appears to me clearly that I had not the letters in my mind.'
"Russell.'Then if it appears to you clearly that you had not the letters in your mind, what had you in your mind?'
"Pigott.'It must have been something far more serious.'
"Russell.'What was it?'
"Pigott(helplessly, great beads of perspiration standing out on his forehead and trickling down his face). 'I cannot tell you. I have no idea.'
"Russell.'It must have been something far more serious than the letters?'
"Pigott(vacantly). 'Far more serious.'
"Russell(briskly). 'Can you give my Lords any clew of the most indirect kind to what it was?'
"Pigott(in despair). 'I cannot.'
"Russell.'Or from whom you heard it?'
"Pigott.'No.'
"Russell.'Or when you heard it?'
"Pigott.'Or when I heard it.'
"Russell.'Or where you heard it?'
"Pigott.'Or where I heard it.'
"Russell.'Have you ever mentioned this fearful matter—whatever it is—to anybody?'
"Pigott.'No.'
"Russell.'Still locked up, hermetically sealed in your own bosom?'
"Pigott.'No, because it has gone away out of my bosom, whatever it was.'
"On receiving this answer Russell smiled, looked at the bench, and sat down. A ripple of derisive laughter broke over the court, and a buzz of many voices followed. The people standing around me looked at each other and said, 'Splendid.' The judges rose, the great crowd melted away, and an Irishman who mingled in the throng expressed, I think, the general sentiment in a single word, 'Smashed.'"
Pigott's cross-examination was finished the following day, and the second day he disappeared entirely, and later sent back from Paris a confession of his guilt, admitting his perjury, and giving the details of how he had forged the alleged Parnell letter by tracing words and phrases from genuine Parnell letters, placed against the window-pane, and admitting that he had sold the forged letter for £605.
After the confession was read, the Commission "found" that it was a forgery, and theTimeswithdrew the facsimile letter.
A warrant was issued for Pigott's arrest on the charge of perjury, but when he was tracked by the police to a hotel in Madrid, he asked to be given time enough to collect his belongings, and, retiring to his room, blew out his brains.
The records of the criminal courts in this country contain few cases that have excited so much human interest among all classes of the community as the prosecution and conviction of Carlyle W. Harris.
Even to this day—ten years after the trial—there is a widespread belief among men, perhaps more especially among women, who did not attend the trial, but simply listened to the current gossip of the day and followed the newspaper accounts of the court proceedings, that Harris was innocent of the crime for the commission of which his life was forfeited to the state.
It is proposed in this chapter to discuss some of the facts that led up to the testimony of one of the most distinguished toxicologists in the country, who was called for the defence on the crucial point in the case; and to give extracts from his cross-examination, his failure to withstand which was the turning-point in the entire trial. He returned to his home in Philadelphia after he left the witness-stand, and openly declared in public, when askedto describe his experiences in New York, that he had "gone to New York only to make a fool of himself and return home again."
It is also proposed to give some of theinsidehistory of the case—facts that never came out at the trial, not because they were unknown at the time to the district attorney, nor unsusceptible of proof, but because the strict rules of evidence in such cases often, as it seems to the writer, withhold from the ears of the jury certain facts, the mere recital of which seems to conclude the question of guilt. For example, the rule forbidding the presentation to the jury of anything that was said by the victim of a homicide, even to witnesses surrounding the death-bed, unless the victim in express terms makes known his own belief that he cannot live, and that he has abandoned allhopeor expectation of recovery before he tells the tale of the manner in which he was slain, or the causes that led up to it, has allowed many a guilty prisoner, if not to escape entirely, at least to avoid the full penalty for the crime he had undoubtedly committed.
Carlyle Harris was a gentleman's son, with all the advantages of education and breeding. In his twenty-second year, and just after graduating with honors from the College of Physicians and Surgeons in New York City, he was indicted and tried for the murder of Miss Helen Potts, a young, pretty, intelligent, and talented school girl in attendance at Miss Day's Ladies' Boarding School, on 40th Street, New York City.
Harris had made the acquaintance of Miss Potts in the summer of 1889, and all during the winter paid marked attention to her. The following spring, while visiting her uncle, who was a doctor, she was delivered of a four months' child, and was obliged to confess to her mother that she was secretly married to Harris under assumed names, and that her student husband had himself performed an abortion upon her.
Harris was sent for. He acknowledged the truth of his wife's statements, but refused to make the marriage public. From this time on, till the day of her daughter's death, the wretched mother made every effort to induce Harris to acknowledge his wife publicly. She finally wrote him on the 20th of January, 1891, "You must go on the 8th of February, the anniversary of your secret marriage, before a minister of the gospel, and there have a Christian marriage performed—no other course than this will any longer be satisfactory to me or keep me quiet."
That very day Harris ordered at an apothecary store six capsules, each containing 4-1/2 grains of quinine and 1/6 of a grain of morphine, and had the box marked: "C. W. H. Student. One before retiring." Miss Potts had been complaining of sick headaches, and Harris gave her four of these capsules as an ostensible remedy. He then wrote to Mrs. Potts that he would agree to her terms "unless some other way could be found of satisfying her scruples," and went hurriedly to Old Point Comfort. Upon hearing from his wife that the capsulesmade her worse instead of better, he still persuaded her to continue taking them. On the day of her death she complained to her mother about the medicine Carlyle had given her, and threatened to throw the box with the remaining capsule out of the window. Her mother persuaded her to try this last one, which she promised to do. Miss Potts slept in a room with three classmates who, on this particular night, had gone to a symphony concert. Upon their return they found Helen asleep, but woke her up and learned from her that she had been having "such beautiful dreams," she "had been dreaming of Carl." Then she complained of feeling numb, and becoming frightened, begged the girls not to let her go to sleep. She repeated that she had taken the medicine Harris had given her, and asked them if they thought it possible that he would give her anything to harm her. She soon fell into a profound coma, breathing only twice to the minute. The doctors worked over her for eleven hours without restoring her to consciousness, when she stopped breathing entirely.
The autopsy, fifty-six days afterward, disclosed an apparently healthy body, and the chemical analysis of the contents of the stomach disclosed the presence of morphine butnotof quinine, though the capsules as originally compounded by the druggist contained twenty-seven times as much quinine as morphine.
This astounding discovery led to the theory of the prosecution: that Harris had emptied the contents ofoneof the capsules, had substituted morphine in sufficient quantities to kill,in place ofthe 4-1/2 grains of quinine (to the eye, powdered quinine and morphine are identical), and had placed this fatal capsule in the box with the other three harmless ones, one to be taken each night. He had then fled from the city, not knowing which day would brand him a murderer.
Immediately after his wife's death Harris went to one of his medical friends and said: "I only gave her four capsules of the six I had made up;the two I kept out will show that they are perfectly harmless. No jury can convict me with those in my possession; they can be analyzed and proved to be harmless."
Theywereanalyzed and it was proved that the prescription had been correctly compounded. But oftentimes the means a criminal uses in order to conceal his deed are the very means that Providence employs to reveal the sin that lies hidden in his soul. Harris failed to foresee that it was the preservation of these capsules that would really convict him. Miss Potts had takenallthat he had given her, and no one could ever have been certain that it was not the druggist's awful mistake, had not these retained capsules been analyzed. When Harris emptied one capsule and reloaded it with morphine,he had himself become the druggist.
It was contended that Harris never intended to recognize Helen Potts as his wife. He married her in secret, it appeared at the trial,—as it were from his own lipsthrough the medium of conversation with a friend,—"because he could not accomplish her ruin in any other way." He brought her to New York, was married to her before an alderman under assumed names, and then having accomplished his purpose, burned the evidence of their marriage, the false certificate. Finally, when the day was set upon which hemustacknowledge her as his wife, he planned her death.
The late recorder, Frederick Smyth, presided at the trial with great dignity and fairness. The prisoner was ably represented by John A. Taylor, Esq., and William Travers Jerome, Esq., the present district attorney of New York.
Mr. Jerome's cross-examination of Professor Witthaus, the leading chemist for the prosecution, was an extremely able piece of work, and during its eight hours disclosed an amount of technical information and research such as is seldom seen in our courts. Had it not been for the witness's impregnable position, he certainly would have succumbed before the attack. The length and technicality of the examination render its use impracticable in this connection; but it is recommended to all students of cross-examination who find themselves confronted with the task of examination in so remote a branch of the advocate's equipment as a knowledge of chemistry.
The defence consisted entirely of medical testimony, directed toward creating a doubt as to our theory thatmorphine was the cause of death. Their cross-examination of our witnesses was suggestive of death from natural causes: from heart disease, a brain tumor, apoplexy, epilepsy, uremia. In fact, the multiplicity of their defences was a great weakness. Gradually they were forced to abandon all but two possible causes of death,—that by morphine poisoning and that by uremic poisoning. This narrowed the issue down to the question, Was it a large dose of morphine that caused death, or was it a latent kidney disease that was superinduced and brought to light in the form of uremic coma by small doses of morphine, such as the one-sixth of a grain admittedly contained in the capsules Harris administered? In one case Harris was guilty; in the other he was innocent.
Helen Potts died in a profound coma. Was it the coma of morphine, or that of kidney disease? Many of the leading authorities in this city had given their convictions in favor of the morphine theory. In reply to those, the defence was able to call a number of young doctors, who have since made famous names for themselves, but who at the time were almost useless as witnesses with the jury because of their comparative inexperience. Mr. Jerome had, however, secured the services of one physician who, of all the others in the country, had perhaps apparently best qualified himself by his writings and thirty years of hospital experience to speak authoritatively upon the subject.
His direct testimony was to the effect that—basing his opinion partly upon wide reading of the literature of the subject, and what seemed to him to be the general consensus of professional opinion about it, and "very largely on his own experience"—no living doctor can distinguish the coma of morphine from that of kidney disease; and as the theory of the criminal law is that, if the death can be equally as well attributed to natural causes as to the use of poison, the jury would be bound to give the prisoner the benefit of the doubt and acquit him.
It was the turning-point in the trial. If any of the jurors credited this testimony,—the witness gave the reasons for his opinion in a very quiet, conscientious, and impressive manner,—there certainly could be no conviction in the case, nothing better than a disagreement of the jury. It was certain Harris had given the capsules, but unless his wife had died of morphine poisoning, he was innocent of her death.
The cross-examination that follows is much abbreviated and given partly from memory. It was apparent that the witness would withstand any amount of technical examination and easily get the better of the cross-examiner if such matters were gone into. He had made a profound impression. The court had listened to him with breathless interest. He must be dealt with gently and, if possible, led into self-contradictions where he was least prepared for them.
The cross-examiner sparred for an opening with thedetermination to strike quickly and to sit down if he got in one telling blow. The first one missed aim a little, but the second brought a peal of laughter from the jury and the audience, and the witness retired in great confusion. Even the lawyers for the defence seemed to lose heart, and although two hours before time of adjournment, begged the court for a recess till the following day.
Counsel(quietly). "Do you wish the jury to understand, doctor, that Miss Helen Potts did not die of morphine poisoning?"
Witness."I do not swear to that."
Counsel."What did she die of?"
Witness."I don't swear what she died of."
Counsel."I understood you to say that in your opinion the symptoms of morphine could not be sworn to with positiveness. Is that correct?"
Witness."I don't think they can, with positiveness."
Counsel."Do you wish to go out to the world as saying that you have never diagnosed a case of morphine poisoning excepting when you had an autopsy to exclude kidney disease?"
Witness."I do not. I have not said so."
Counsel."Then you have diagnosed a case on the symptoms alone, yes? or no? I want a categorical answer."
Witness(sparring). "I would refuse to answer that question categorically; the word 'diagnosed' is usedwith two different meanings. One has to make what is known as a 'working diagnosis' when he is called to a case, not a positive diagnosis."
Counsel."When was your last case of opium or morphine poisoning?"
Witness."I can't remember which was the last."
Counsel(seeing an opening). "I don't want the name of the patient. Give me the date approximately, that is, the year—but under oath."
Witness."I think the last was some years ago."
Counsel."How many years ago?"
Witness(hesitating). "It may be eight or ten years ago."
Counsel."Was it a case of death from morphine poisoning?"
Witness."Yes, sir."
Counsel."Was there an autopsy?"
Witness."No, sir."
Counsel."How did you know it was a death from morphine, if, as you said before, such symptoms cannot be distinguished?"
Witness."I found out from a druggist that the woman had taken seven grains of morphine."
Counsel."You made no diagnosis at all until you heard from the druggist?"
Witness."I began to give artificial respiration."
Counsel."But that is just what you would do in a case of morphine poisoning?"
Witness(hesitating). "Yes, sir. I made, of course, a working diagnosis."
Counsel."Do you remember the case you had before that?"
Witness."I remember another case."
Counsel."When was that?"
Witness."It was a still longer time ago. I don't know the date."
Counsel."How many years ago, on your oath?"
Witness."Fifteen, probably."
Counsel."Any others?"
Witness."Yes, one other."
Counsel."When?"
Witness."Twenty years ago."
Counsel."Are these three cases all you can remember in your experience?"
Witness."Yes, sir."
Counsel(chancing it). "Were more than one of them deaths from morphine?"
Witness."No, sir, only one."
Counsel(looking at the jury somewhat triumphantly). "Then it all comes down to this: you have had the experience of one case of morphine poisoning in the last twenty years?"
Witness(in a low voice). "Yes, sir, one that I can remember."
Counsel(excitedly). "And are you willing to come here from Philadelphia, and state that the New Yorkdoctors who have already testified against you, and who swore they had had seventy-five similar cases in their own practice, are mistaken in their diagnoses and conclusions?"
Witness(embarrassed and in a low tone). "Yes, sir, I am."
Counsel."You never heard of Helen Potts until a year after her death, did you?"
Witness."No, sir."
Counsel."You heard these New York physicians say that they attended her and observed her symptoms for eleven hours before death?"
Witness."Yes, sir."
Counsel."Are you willing to go on record, with your one experience in twenty years, as coming here and saying that you do not believe our doctors can tell morphine poisoning when they see it?"
Witness(sheepishly). "Yes, sir."
Counsel."You have stated, have you not, that the symptoms of morphine poisoning cannot be told with positiveness?"
Witness."Yes, sir."
Counsel."You said you based that opinion upon your own experience, and it now turns out you have seen but one case in twenty years."
Witness."I also base it upon my reading."
Counsel(becoming almost contemptuous in manner). "Is your reading confined to your own book?"
Witness(excitedly). "No, sir; I say no."
Counsel(calmly). "But I presume you embodied in your own book the results of your reading, did you not?"
Witness(a little apprehensively). "I tried to, sir."
It must be explained here that the attending physicians had said that the pupils of the eyes of Helen Potts were contracted to a pin-point, so much so as to be practically unrecognizable, andsymmetricallycontracted—that this symptom was the oneinvariablypresent in coma from morphine poisoning, and distinguished it from all other forms of death, whereas in the coma of kidney disease one pupil would be dilated and the other contracted; they would be unsymmetrical.
Counsel(continuing). "Allow me to read to you from your own book on page 166, where you say (reading), 'I have thought that inequality of the pupils'—that is, where they are not symmetrically contracted—'is proof that a case is not one of narcotism'—or morphine poisoning—'butProfessor Taylor has recorded a case of morphine poisoning in which it[the unsymmetrical contraction of the pupils]occurred.' Do I read it as you intended it?"
Witness."Yes, sir."
Counsel."So until you heard of the case that Professor Taylor reported, you had always supposed symmetrical contraction of the pupils of the eyes to be the distinguishingsymptom of morphine poisoning, and it is on this that you base your statement that the New York doctors could not tell morphine poisoning positively when they see it?"
Witness(little realizing the point). "Yes, sir."
Counsel(very loudly). "Well, sir, did you investigate that case far enough to discover that Professor Taylor's patient had one glass eye?"[25]
Witness(in confusion). "I have no memory of it."
Counsel."That has been proved to be the case here. You would better go back to Philadelphia, sir."
There were roars of laughter throughout the audience as counsel resumed his seat and the witness walked out of the court room. It is difficult to reproduce in print the effect made by this occurrence, but with the retirement of this witness the defendant's case suffered a collapse from which it never recovered.
* * * * *
It is interesting to note that within a year of Harris's conviction, Dr. Buchanan was indicted and tried for a similar offence—wife poisoning by the use of morphine.
It appeared in evidence at Dr. Buchanan's trial that, during the Harris trial and the examination of the medical witnesses, presumably the witness whose examination has been given above, Buchanan had said to his messmatesthat "Harris was a —— fool, he didn't know how to mix his drugs. If he had put a little atropine with his morphine, it would have dilated the pupil of at least one of his victim's eyes, and no doctor could have deposed to death by morphine."
When Buchanan's case came up for trial it was discovered that, although morphine had been found in the stomach, blood, and intestines of his wife's body, the pupils of the eyes were not symmetrically contracted. No positive diagnosis of her case could be made by the attending physicians until the continued chemical examination of the contents of the body disclosed indisputable evidence of atropine (belladonna). Buchanan had profited by the disclosures in the Harris trial, but had made the fatal mistake of telling his friends how it could have been done in order to cheat science. It was this statement of his that put the chemists on their guard, and resulted in Buchanan's conviction and subsequent execution.
Carlyle Harris maintained his innocence even after the Court of Appeals had unanimously sustained his conviction, and even as he calmly took his seat in the electric chair.
The most famous English poison case comparable to the Harris and Buchanan cases was that of the celebrated William Palmer, also a physician by profession, who poisoned his companion by the use of strychnine in order to obtain his money and collect his racing bets. The trial is referred to in detail in another chapter.
Palmer, like Harris and Buchanan, maintained a stoical demeanor throughout his trial and confinement in jail, awaiting execution. The morning of his execution he ate his eggs at breakfast as if he were going on a journey. When he was led to the gallows, it was demanded of him in the name of God, as was the custom in England in those days, if he was innocent or guilty. He made no reply. Again the question was put, "William Palmer, in the name of Almighty God, are you innocent or guilty?" Just as the white cap came over his face he murmured in a low breath, "Guilty," and the bolts were drawn with a crash.
On December 15, 1900, there appeared in theNew York Worldan article written by Thomas J. Minnock, a newspaper reporter, in which he claimed to have been an eye-witness to the shocking brutality of certain nurses in attendance at the Insane Pavilion of Bellevue Hospital, which resulted in the death, by strangulation, of one of its inmates, a Frenchman named Hilliard. This Frenchman had arrived at the hospital at about four o'clock in the afternoon of Tuesday, December 11. He was suffering from alcoholic mania, but was apparently otherwise in normal physical condition. Twenty-six hours later, or on Wednesday, December 12, he died. An autopsy was performed which disclosed several bruises on the forehead, arm, hand, and shoulder, three broken ribs and a broken hyoid bone in the neck (which supports the tongue), and a suffusion of blood or hæmorrhage on both sides of the windpipe. The coroner's physician reported the cause of death, as shown by the autopsy, to be strangulation. The newspaper reporter, Minnock, claimed to have been in Bellevue at the time, feigning insanity for newspaper purposes; and upon his discharge from thehospital he stated that he had seen the Frenchman strangled to death by the nurses in charge of the Pavilion by the use of a sheet tightly twisted around the insane man's neck. The language used in the newspaper articles written by Minnock to describe the occurrences preceding the Frenchman's death was as follows:—
"At supper time on Wednesday evening, when the Frenchman, Mr. Hilliard, refused to eat his supper, the nurse, Davis, started for him. Hilliard ran around the table, and the other two nurses, Dean and Marshall, headed him off and held him; they forced him down on a bench, Davis called for a sheet, one of the other two, I do not remember which, brought it, and Davis drew it around Hilliard's neck like a rope. Dean was behind the bench on which Hilliard had been pulled back; he gathered up the loose ends of the sheet and pulled the linen tight around Hilliard's neck, then he began to twist the folds in his hand. I was horrified. I have read of the garrote; I have seen pictures of how persons are executed in Spanish countries; I realized that here, before my eyes, a strangle was going to be performed. Davis twisted the ends of the sheet in his hands, round and round; he placed his knee against Hilliard's back and exercised all his force. The dying man's eyes began to bulge from their sockets; it made me sick, but I looked on as if fascinated. Hilliard's hands clutched frantically at the coils around his neck. 'Keep his hands down, can't you?' shouted Davis in a rage.Dean and Marshall seized the helpless man's hands; slowly, remorselessly, Davis kept on twisting the sheet. Hilliard began to get black in the face; his tongue was hanging out. Marshall got frightened. 'Let up, he is getting black!' he said to Davis. Davis let out a couple of twists of the sheet, but did not seem to like to do it. At last Hilliard got a little breath, just a little. The sheet was still brought tight about the neck. 'Now will you eat?' cried Davis. 'No,' gasped the insane man. Davis was furious. 'Well, I will make you eat; I will choke you until you do eat,' he shouted, and he began to twist the sheet again. Hilliard's head would have fallen upon his breast but for the fact that Davis was holding it up. He began to get black in the face again. A second time they got frightened, and Davis eased up on the string. He untwisted the sheet, but still kept a firm grasp on the folds. It took Hilliard some time to come to. When he did at last, Davis again asked him if he would eat. Hilliard had just breath enough to whisper faintly, 'No.' I thought the man was dying then. Davis twisted up the sheet again, and cried, 'Well, I will make him eat or I will choke him to death.' He twisted and twisted until I thought he would break the man's neck. Hilliard was unconscious at last. Davis jerked the man to the floor and kneeled on him, but still had the strangle hold with his knee giving him additional purchase. He twisted the sheet until his own fingers were sore, then the threenurses dragged the limp body to the bath-room, heaved him into the tub with his clothes on, and turned the cold water on him. He was dead by this time, I believe. He was strangled to death, and the finishing touches were put on when they had him on the floor. No big, strong, healthy man could have lived under that awful strangling. Hilliard was weak and feeble."
The above article appeared in the morningJournal, a few days after the original publication in theNew York World. The other local papers immediately took up the story, and it is easy to imagine the pitch to which the public excitement and indignation were aroused. The three nurses in charge of the pavilion at the time of Hilliard's death were immediately indicted for manslaughter, and the head nurse, Jesse R. Davis, was promptly put on trial in the Court of General Sessions, before Mr. Justice Cowing and a "special jury." The trial lasted three weeks, and after deliberating five hours upon their verdict, the jury acquitted the prisoner.
The intense interest taken in the case, not only by the public, but by the medical profession, was increased by the fact that for the first time in the criminal courts of this country two inmates of the insane pavilion, themselves admittedly insane, were called by the prosecution, and sworn and accepted by the court as witnesses against the prisoner. One of these witnesses was suffering from a form of insanity known as paranoia, and the other from general paresis. With the exception of the two insanewitnesses and the medical testimony founded upon the autopsy, there was no direct evidence on which to convict the prisoner but the statement of the newspaper reporter, Minnock. He was the one sane witness called on behalf of the prosecution, who was an eye-witness to the occurrence, and the issues in the case gradually narrowed down to a question of veracity between the newspaper reporter and the accused prisoner, the testimony of each of these witnesses being corroborated or contradicted on one side or the other by various other witnesses.
If Minnock's testimony was credited by the jury, the prisoner's contradiction would naturally have no effect whatever, and the public prejudice, indignation, and excitement ran so high that the jury were only too ready and willing to accept the newspaper account of the transaction. The cross-examination of Minnock, therefore, became of the utmost importance. It was essential that the effect of his testimony should be broken, and counsel having his cross-examination in charge had made the most elaborate preparations for the task. Extracts from the cross-examination are here given as illustrations of many of the suggestions which have been discussed in previous chapters.
The district attorney in charge of the prosecution was Franklin Pierce, Esq. In his opening address to the jury he stated that he "did not believe that ever in the history of the state, or indeed of the country, had a jurybeen called upon to decide such an important case as the one on trial." He continued: "There is no fiction—no 'Hard Cash'—in this case. The facts here surpass anything that fiction has ever produced. The witnesses will describe the most terrible treatment that was ever given to an insane man. No writer of fiction could have put them in a book. They would appear so improbable and monstrous that his manuscript would have been rejected as soon as offered to a publisher."
When the reporter, Minnock, stepped to the witness-stand, the court room was crowded, and yet so intense was the excitement that every word the witness uttered could be distinctly heard by everybody present. He gave his evidence in chief clearly and calmly, and with no apparent motive but to narrate correctly the details of the crime he had seen committed. Any one unaware of his career would have regarded him as an unusually clever and apparently honest and courageous man with a keen memory and with just the slightest touch of gratification at the important position he was holding in the public eye in consequence of his having unearthed the atrocities perpetrated in our public hospitals.
His direct evidence was practically a repetition of his newspaper article already referred to, only much more in detail. After questioning him for about an hour, the district attorney sat down with a confident "He is your witness, if you wish to cross-examine him."
No one who has never experienced it can have theslightest appreciation of the nervous excitement attendant on being called upon to cross-examine the chief witness in a case involving the life or liberty of a human being. If Minnock withstood the cross-examination, the nurse Davis, apparently a most worthy and refined young man who had just graduated from the Mills Training School for Nurses, and about to be married to a most estimable young lady, would have to spend at least the next twenty years of his life at hard labor in state prison.
The first fifteen minutes of the cross-examination were devoted to showing that the witness was a thoroughly educated man, twenty-five years of age, a graduate of Saint John's College, Fordham, New York, the Sacred Heart Academy, the Francis Xavier, the De Lasalle Institution, and had travelled extensively in Europe and America. The cross-examination then proceeded:—
Counsel(amiably). "Mr. Minnock, I believe you have written the story of your life and published it in theBridgeport Sunday Heraldas recently as last December? I hold the original article in my hand."
Witness."It was not the story of my life."
Counsel."The article is signed by you and purports to be a history of your life."
Witness."It is an imaginary story dealing with hypnotism. Fiction partly, but it dealt with facts."
Counsel."That is, you mean to say you mixed fiction and fact in the history of your life?"
Witness."Yes, sir."
Counsel."In other words, you dressed up facts with fiction to make them more interesting?"
Witness."Precisely."
Counsel."When in this article you wrote that at the age of twelve you ran away with a circus, was that dressed up?"
Witness."Yes, sir."
Counsel."It was not true?"
Witness."No, sir."
Counsel."When you said that you continued with this circus for over a year, and went with it to Belgium, there was a particle of truth in that because you did, as a matter of fact, go to Belgium, but not with the circus as a public clown; is that the idea?"
Witness."Yes, sir."
Counsel."So there was some little truth mixed in at this point with the other matter?"
Witness."Yes, sir."
Counsel."When you wrote that you were introduced in Belgium, at the Hospital General, to Charcot, the celebrated Parisian hypnotist, was there some truth in that?"
Witness."No, sir."
Counsel."You knew that Charcot was one of the originators of hypnotism in France, didn't you?"
Witness."I knew that he was one of the original hypnotists."
Counsel."How did you come to state in the newspaper history of your life that you were introduced toCharcot at the Hospital General at Paris if that was not true?"
Witness."While there I met a Charcot."