CHAPTER FIFTEEN

Saturday morning, 20th October, 1956, opened with Harry Deveen on his feet cross-examining Kilrain.

‘You were asked if you would find arsenic in urine unless it was administered, or was in the bottle into which it was put before you tested it?’

‘Yes.’

‘Am I right in saying that arsenic is one of the generally occurring impurities in peroxide of hydrogen?’

‘No, I should not expect to find it.’

‘I do not ask you if you would expect to find it,’ Deveen said, ‘but am I right in saying that you might find it?’

‘You might,’ Kilrain said, emphasizing the word ‘you’. Deveen had got all he could out of the witness, and it didn’t amount to much.

Now came the prosecution’s last witness, Sir Martin Wiltshire, who began by impressively listing his qualifications and experience in cases of arsenical poisoning, extending over about eighteen years.

‘I have been engaged constantly in cases where it has been suggested that death was due to poisoning; in particular I have had a number of arsenical cases.’

‘Is it easy or not,’ Ainger asked him, ‘to diagnose arsenical poisoning during life?’

‘It is very difficult unless an analysis is made; the symptoms of arsenical poisoning may be imitated by actual disease. Dr. Griffiths found Mrs. Merrill physically very much better until the high-stepping walk symptom, which is the most important symptom of peripheral neuritis. Owing to the weakness of the feet, the patient lifts them high to prevent the toes catching the ground.’

‘We know that from 11th January, 1956, she suffered from severe sickness, a very high pulse and systolic murmur, some indication of heart trouble. To what do you attribute those symptoms?’

‘Arsenical poisoning. On 11th January there were symptoms of acute latent poison, and those indicate that arsenic was taken within a few hours of the onset of those symptoms.’

‘And from and after that time the continued sickness and so on, what do they indicate to your mind?’

‘Taking further large doses of arsenic.’

‘When?’ the judge said.

‘It is impossible to say, my lord, though certainly some must have been taken within a few hours of the onset of the symptoms on 11th January.’

Mr. Justice Lane nodded and scribbled down a note. Wiltshire turned back to Ainger. ‘Having regard to the analysis of the organs of the body taken six months after burial,’ he said, ‘I have no doubt that a possibly fatal dose was taken within twenty-four hours of death.’

‘What would you say was a fatal dose?’

‘By a fatal dose I mean two grains, usually accepted as a possibly fatal dose.’

‘At some time during the case it was suggested that Mrs. Merrill might have committed suicide. Do you think that the taking of arsenic over a considerable period of time such as that you have told us of, would be consistent with suicide?’

‘In suicide one would expect a large dose to be taken, or possibly two; in this case there were successive doses causing very painful symptoms, not in the least indicative of suicide. Rather the contrary.’

‘You say many doses were taken over a long time?’

‘There must have been several doses taken from 11th January to 21st January, in the last acute stage of illness.’

‘Do you think that Mrs. Merrill could possibly have taken that arsenic herself?’

‘I do not.’

‘Not within the last twenty-four hours?’

‘No; for the last four or five days it would have been impossible.’

Ainger finished up his examination with questions about Stone’s illness. Wiltshire came up with the same unequivocal answers.

The symptoms pointed to some irritant poisoning inflaming the stomach and the intestines after the illness began; one thirty-third of a grain of arsenic was found in the urine passed; the illness was due to a dose of at least two grains of arsenic being taken within a very short time of the onset of the symptoms.

‘What amount of arsenic,’ Ainger said, ‘must have been taken four days previously, if you find one thirty-third of a grain in the urine?’

‘Probably over three grains.’

‘Would the vomiting get rid of a considerable part of the arsenic,’ the judge said, ‘so that you would find less in the urine than if he had not vomited?’

‘Yes, my lord.’

Harry Deveen stood up and began his cross-examination. ‘What is the largest dose of arsenic which is given properly as medicine?’

‘In certain diseases you may give fairly large doses. The pharmacopoeial dose goes up to eight hundredths of a grain three times a day. That is the maximum dose. That is a total of twenty-four hundredths of a grain. You can work up to that quantity three times a day, but if you give it straight away it would make the patient ill.’

‘In Mr. Stone’s case, as I understand it, if you had not got the analysis of the urine, the symptoms were the symptoms of ordinary gastric enteritis?’

‘They might have been due to a number of causes.’

Deveen turned to the evidence of Dr. Mortlake and Kilrain in an effort to get Wiltshire to throw doubt on it. It might have seemed only hair-splitting stuff, but Deveen hadn’t wasted his time; he had been leading up to the last questions he put.

‘In the case of suicide by arsenic you said that you would expect one or two doses would be the most that would be taken?’

‘That is rather a matter of common sense.’

Deveen stared at the witness for a moment. Then he glanced at the jury as if inviting them to listen to something of special importance which he was about to say.

‘A matter of common sense? Which would be bound to depend upon the person who is taking it, does it not? A sane person would suffer such pain from the first dose, that he would not take another?’

‘Yes.’

‘On the other hand, someone who is not normal, might she not take two or three doses?’

This was his favourite trick, to switch to the feminine gender when he wanted to focus the jury’s attention upon Mrs. Merrill.

‘In order to commit suicide?’ Wiltshire looked sceptical.

‘What would hold with a sane person would not hold with a woman who was insane?’

‘A person who threw himself out of the window and was not killed might do it again and again until he did kill himself.’

‘Or,’ Harry Deveen said, ‘she might go to a higher window the second time?’

‘No,’ the judge said, ‘that would show sanity.’

If Mr. Justice Lane was trying to be funny, he failed to arouse a glimmer of amusement from anyone. Perhaps he wasn’t trying to be funny anyway. ‘You thoroughly understood what is being put to you by Mr. Deveen,’ he said to Wiltshire, ‘regarding the last hours of the life of Mrs. Merrill, and what might have happened during that time?’

‘Perfectly, my lord.’

‘Is suicide, then, in your opinion, a possible way to account for Mrs. Merrill’s death?’

‘Quite impossible;’ and Wiltshire left the witness box.

‘May it please your lordship, members of the jury,’ Harry Deveen got to his feet again and said, ‘at last I have an opportunity of addressing you who are trying Richard Merrill for his life. For a week now you have listened to the case against him, this man whom the prosecution seek to show is responsible for his wife’s death. You have heard the evidence-in-chief, and you have heard the cross-examination of the witnesses, and now I hope to be able to show you that the prosecution’s case is absolutely nonexistent.’

He pointed out that when a prosecution is conducted by the Crown no expense is spared in unearthing all the evidence that may help its case; the greatest medical experts are called in on its side. Whereas the accused has often only his own resources; he must fashion a defence for himself as best he can.

‘He is not able to employ, for example, Dr. Mortlake,’ Deveen said, ‘he employs the best experts his pocket can afford; these are the witnesses that I am going to bring before you later, and they will not mind if I tell you this, they are not the greatest experts, but they will do their best to help an innocent man prove his innocence.’

Harry Deveen rocked to and fro on his heels for a few moments and then leaned forward to the jury confidentially, his expression that of a man who bore an almost unendurable weight of worry.

‘I have often wondered,’ he said, ‘but never more have I wondered than during this last week, whether you realize the dread responsibility which rests upon the shoulders of counsel when he is defending a man for his life. It is a responsibility which I realize to the very uttermost at this moment now, as I set out to help you understand the truth in the case of Richard Merrill; and understand the truth you must, for you are to decide his innocence, or guilt.’

He began by outlining the case for the Crown, building it up in detail and then finally he said: ‘But they are unable to make any suggestion at all, I have been waiting to hear it, how Merrill is supposed to have administered the poison, or the times when he was administering it. Moreover, they have failed utterly to explain to you why he should do this dreadful thing? No motive of any kind; they can offer you no more reason why Merrill should have murdered his wife than any other person in that house.’

It was for the prosecution to prove the facts, he reminded the jury, not the defence; and he suggested that the case that Mrs. Merrill took arsenic herself was infinitely stronger than the case made against her husband.

‘Look at Richard Merrill, with his business integrity, his popularity in the town where he lived, happily married to his wife with whom, the whole of the evidence shows, he was living on terms of friendship and fondness right up to her death; against whom nothing was ever whispered until Dr. Griffiths went to the police with his suspicions.’

He dealt with the multiple neuritis, from which Mrs. Merrill had been suffering. While multiple neuritis may be caused by arsenical poisoning, it was equally likely to be caused by toxaemia, he argued, poisoning from within oneself, because some organ or organs of our body is not acting properly. This was what Mrs. Merrill was suffering from: multiple neuritis, caused by toxaemia.

He came to 22nd December, 1955, when Merrill sent for Dr. Griffiths. ‘This man,’ Deveen pointed at the dock, ‘who is alleged to be poisoning his wife, sent for her doctor. That is a good start in a poison case, isn’t it? Her illness does not improve, however, and gradually Mrs. Merrill is sinking; undoubtedly from 11th January, 1956 up to 21st January, the poor woman draws nearer and nearer to her death.’

Deveen looked at the jury, then at Mr. Justice Lane, then back at the jury, with an air of incredulity. ‘Every day,’ he said, ‘I do not know when—you have to guess that, you have to guess how—but every day it is suggested that Merrill is poisoning his wife, right up to 21st January.’

He shook his head, as if the suggestion was too ludicrous to be considered. ‘Now,’ he said, his tone becoming serious once more, ‘when I asked Dr. Mortlake, the prosecution’s expert witness, about arsenic after becoming encapsuled, as it is called, in the stomach, I said would he expect to find traces of arsenic in such a case in the intestine several days after it had been taken. Dr. Mortlake said he would. As you will hear from the doctors I am going to call, arsenic can be retained in this way and gradually release itself, when you would get traces of arsenic such as were found in Mrs. Merrill. Isn’t this precisely what happened in Mrs. Merrill’s case? Isn’t this the truth, more convincing than the prosecution’s theory that this poor woman’s husband, for no reason, at a time they cannot name, in a way they cannot suggest, deliberately poisoned her?’

He came to Stone’s illness. Everybody had agreed, he said, Dr. Mortlake and Dr. Griffiths, that the symptoms in this case were consistent with food poisoning, except for some suspicion that depended on one-third of a grain of arsenic found in the urine.

Merrill, Harry Deveen pointed out, was not being tried for attempting to poison Stone; this was just an extra piece of evidence supposed to throw light on whether he had murdered his wife six months before. The evidence that Stone and his wife had dinner with Merrill on the night in question, and that after Stone and his wife had returned home, he was sick for the first time.

‘Mrs. Stone was not sick, no one else was sick, does that prove there was arsenic in Stone’s food or drink that night? Even if he had eaten or drunk something with arsenic in it, you have to be satisfied that Merrill put it there. For what motive? The fantastic motive the prosecution puts forward that he murdered his wife so that he might at some future time marry Mrs. Stone, after he had murdered her husband as well?’

Again that look of incredulity across his face, as Deveen spread out his hands. ‘Of course, members of the jury, it has occurred to you, though it has not occurred to the prosecution—but we cannot expect them to think of everything—that if Merrill wanted to rid himself of his wife in order to marry Mrs. Stone, it could all have been arranged in a perfectly legal way. Through the Divorce Court. In fact, there is no evidence that this was what Merrill wanted for one moment. Even the prosecution admits there is no proof that he led an unhappy married life; they can find nothing against him at all to support their one and only motive for him murdering his wife, and attempting to murder another woman’s husband.’

Deveen pointed to the empty witness box and lowered his voice to a compellingly conversational level.

‘Do not forget that when Richard Merrill stands there and tells you his own true story it will be a matter of life or death for him. Do not forget that every word he says will be questioned; he will be cross-examined, fairly and properly cross-examined, by the Attorney General himself. Remember that when Merrill gives his evidence. When you have heard it, as well as the evidence which will be given by the other witnesses, you will come face to face with this vital fact. That there is no evidence that Merrill, of all people, poisoned his wife.’

He paused, his shark-like face jutting forward, for the build-up. ‘It is not for him to prove that Mrs. Merrill took that poison herself. It is for the prosecution to prove beyond reasonable doubt that he poisoned her. If they have not done that, then upon all the facts that have been proved before you, both for the prosecution and for the defence, the Crown have failed in their case against Richard Merrill, and you will say that he is not guilty of murder.’

The whole atmosphere in court had changed; without any apparent effort or any special skill, Harry Deveen had suddenly made the case against Richard Merrill appear flimsy and weak.

On this curiously buoyant note Mr. Justice Lane adjourned until next Monday.