Physicians are like kings—they brook no contradiction.
The Duchess of Malfi, Act V. Sc. ii.
I
THE KING’S PARK MURDER
THE ANCIENT SANCTUARY of Holyrood, embracing an area some five miles in circumference, of old afforded a refuge from importunate creditors to such debtors as preferred rheumatism acquired within its bounds, to jail fever contracted in the Tolbooth. Now known as the King’s Park—the name changes according to the Sovereign’s sex—this fair champaign, unique adornment of a capital city, is dominated by the majestic bulk of Arthur’s Seat. Over against this rise the long ramparts of Salisbury Craigs, whither, you remember, Reuben Butler resorted on the morning following the Porteous Riot, and among whose rocks Deacon Brodie’s partners hid the tools employed by them in their abortive raid on the Excise Office. Between the mountain and the Craigs lies the deep valley of the Hunter’s Bog, and high up on the steep hillside, extending from St. Anthony’s Chapel to the foot of the cleft called the Guttit Haddie (which, being interpreted, signifies eviscerated haddock), winds among a wilderness of whins the narrow track with the picturesque name of the Piper’s Walk. Of this inconsiderable pathway there will presently be more to say.
While the old-time criminous denizens of the Park were commonly those unable or unwilling to pay their just and lawful debts, it has been in bygone days the scene of violence and bloodshed. The Duke’s Walk, running from the Palace of Holyrood House to Abbeyhill, was once a popular pitch for duellists, and many a pretty quarrel has been settled there by the arbitrament of steel or lead. At the northern end of the road may yet be seen in the grass verge of the footway a little heap of stones, still known as Muschet’s Cairn in memory of one Nicol Muschet, who in 1720 murdered his wife near this place, a crime immortalized by Sir Walter Scott in The Heart of Midlothian. Muschet, a dissipated young Edinburgh surgeon, having wearied of his long-suffering spouse, attempted, in conjunction with divers unconscionable and vile associates, basely to compass her disgrace and death. These abominable schemes miscarried; and finally the miscreant severed at one blow the nuptial knot and the poor creature’s throat. It is pleasant to record that he was well and truly hanged and that his principal abettor was declared infamous and banished.1
Two centuries later the peaceful amenity of the Park was affronted by another murder of a very brutal and savage type, which, because of certain medico-legal peculiarities, make it worth while briefly to consider. Strangely enough, four years after there was perpetrated in Edinburgh, near another hill, Corstorphine, a further crime of similar character, presenting a curious resemblance to the other, but even more revolting and inhuman. In each case the victim was a young woman, horribly done to death in circumstances of extreme atrocity, by a young married man with no apparent motive to commit the crime; in each the murderer, while admittedly sane, escaped his doom on the ground that he was alleged to have been subject to fits, tendering by his counsel in the course of the trial a plea of “Guilty of culpable homicide” (manslaughter), which was accepted by the Crown, to the saving of his neck and the perplexity of Justice.
(1)
On Wednesday, 21st March, 1934, within the High Court of Justiciary at Edinburgh, the diet was called against Alexander Toomey. The Lord Justice-Clerk (the Right Hon. Lord Aitchison) presided; the Crown case was conducted by the Lord Advocate (the Right Hon. W. G. Normand, K.C., M.P., now Lord Justice-General) and Mr. T. M. Taylor, Advocate-Depute; Mr. D. Oswald Dykes, K.C., and Mr. A. M. Prain, advocate, appeared for the defence.
The charge upon which the accused was indicted ran thus: “That on 23rd or 24th January, 1934, in Holyrood Park, Edinburgh, at a part to the south-east thereof known as Hunter’s Bog and near to a pathway known as the Piper’s Walk, you did assault Rachel M’Millan, otherwise known as Rita M’Millan, then residing at 36 West Bowling Green Street, Leith, Edinburgh, and did strike her upon the head and body with your fists or with a blunt instrument, and did tie her hands together with a piece of blue material, and did place two pieces of blue material round her neck and over her mouth and a necktie round her neck, and did tie the said pieces of blue material and the said necktie tightly round her neck and did strangle and asphyxiate her and did murder her.” Annexed to the indictment were lists of 16 productions (exhibits), chiefly medical reports and articles of clothing, and 19 witnesses, “all in Edinburgh.”
The accused, a slightly built young fellow of respectable appearance, was placed in the dock, and after smiling to someone in the gallery, calmly awaited the issue of the day. His counsel intimated a special defence: “That the accused pleads Not Guilty, and specially that on the date that he is alleged to have committed the crime libelled he was insane or in such a state of mental weakness as to make him irresponsible for his actions.” One member of the jury stated that he had certain scruples as to serving. “Do I understand,” asked Lord Aitchison, “that if the evidence in this case should justify a verdict of murder, you would not be prepared to return that verdict?” “Not so long as capital punishment is the law of this country,” replied the conscientious objector, who was thereupon excused. The trial then proceeded.
The first witness for the Crown was Mrs. Catherine Rich, 36 West Bowling Green Street, Leith, who stated that she let a bedroom in her house to women lodgers. One, Helen King, had lived there for some time with a female friend; when the latter left in the beginning of January, she asked to be allowed to bring another girl to share her room. This was Rita M’Millan, who came on the 14th. She said she was a waitress at a dance club, the Havana, and went out to work as a rule between 8 and 9 at night, returning between 4 and 5 in the morning. She was in good health and of a cheerful disposition. On Tuesday, 23rd January, she left about 7.30; witness never saw her alive again. Next day she learned that the dead body of a girl had been found in the King’s Park, and later at the City Mortuary she identified it as that of Rita M‘Millan.
Helen King (25), who described herself as an unemployed waitress, stated that she was a friend of the deceased, with whom she had lived in the High Street for five months, and told how it was arranged that they should lodge together at her new rooms. So far as witness knew she had no employment. About 8 o’clock on the evening in question witness and Sarah Westwood, another lodger, chanced to visit the Suburban Bar in the Fleshmarket Close, where they saw the deceased with some girl friends. The accused came in and joined the party, and after divers small whiskies and light ales, he invited Rita to go out with him. About 10.15 witness and Westwood, in pursuit of further refreshment, sought the Olympia Cafe, 86 Leith Street, for supper. There they found Rita and the accused enjoying a high tea: the girl had fish and chips; the man, bacon and eggs. They seemed to be on very friendly terms. The last witness saw of them was at 10.45, when she and her friend left to go home. Rita did not come back that night, and next day witness learned of the finding of the body, which she later identified. She now recognized certain articles of clothing as those worn by the deceased on the night of her death: a coat and beret; an undervest and silk slip; a pair of knickers and a pair of garters; the belt of a frock, a piece of tape, a pair of stockings, a handkerchief, and a pair of shoes. All these things Rita had on when she last saw her alive. Shewn pieces of blue material, witness said they were bits of the blue dress Rita was wearing that night; the handbag and purse produced were also her property. Shewn a black necktie with a grey stripe, she said it was like the tie worn by the accused that night. As regards the accused’s condition on the evening of 23rd January, the Lord Advocate asked her: “Did it appear to you at any time that night that he was not able to understand what he was saying or doing?” “He was quite normal,” replied the witness. She admitted, in reply to Mr. Dykes, that the accused had had a drink. “Was that having any effect upon him?—Not so far as I could see.” She was certain that another tie, produced by the defence, now shewn to her, was not that which Toomey was then wearing. Rita’s handbag contained a powder-puff, lipstick, and money—witness did not know how much. She was wearing some blue beads which belonged to witness. The Lord Justice-Clerk: “When you last saw Toomey that night was there anything odd in his manner?—Nothing at all. Or his speech?—No, nothing. Or his behaviour?—No, nothing."
Mrs. Sarah Westwood (25) stated that she was a married woman, living apart from her husband. Three months before Rita M‘Millan’s death witness shared lodgings with her in the High Street. She said she was working in a cafe, the whereabouts of which witness did not know. When Toomey invited Rita to go out with him that night he said it was “to some other bar for a drink.” When witness saw them later in the cafe they were both sober and seemed on friendly terms. Toomey was then wearing a tie like that produced by the Crown. Witness denied that she and Rita were earning their living on the streets.
Joseph Ingman, manager of the Suburban Bar, Fleshmarket Close, said he had known the accused by sight for three years. He was in the public bar at 7.15 on 23rd January and ordered a light ale. About 9 o’clock witness saw the accused upstairs with three women, in whose company he had never seen him before. [Witness identified King and Westwood.] At 10 o’clock the accused and one of the girls left the premises. Neither was under the influence of drink, and he saw nothing odd or strange about their demeanour. Frank Adamson, barman at the public-house, gave corroborative evidence. Jean Edwards, waitress in the Olympia Café, 86 Leith Street, identified the accused as having supped with a girl whom she knew well by sight. Witness thought they were under the influence of drink, “but not much.” They were quite friendly.
Mrs. Bridget Millar, 90 Holyrood Road, stated that the accused was her nephew. On 24th January, about 12.30 a.m., she, having gone to bed, was awakened by a knocking at her door. “I asked who was there, and the reply was, ’Alick Toomey.’ ” She asked him what was the matter, and he said that he had struck a girl in the King’s Park. Witness said, “Don’t be silly. Go home.” He asked her to go up to his mother’s, and went away. He was only two minutes in her house. He seemed very strange in his manner, his eyes were glassy, and she was rather frightened. She told her husband, who remarked, “He’ll be drunk.” Later they decided to go to the mother’s house, 48 High Street, where they informed that lady of what had happened. She was much alarmed, and accompanied witness and her husband to the accused’s house, 15 Leith Street Terrace. It was then about 2 a.m. They found him going to bed. His mother asked him what he had done, and he repeated that he had struck a girl in the King’s Park. Her husband bade him go to bed. They then sought counsel of Patrick Toomey, the accused’s brother, who lived at 24 Montrose Terrace, and it was thought well to inform the police, lest the girl might be lying unconscious in the Park. This was accordingly done. The accused was not a frequent visitor at her house, but she met him occasionally at his mother’s. She once saw him in a fit, on the day his brother was being buried. Cross-examined—Witness had heard of the accused having similar attacks, in one of which he was taken to the Infirmary. In reply to the Court, the accused sometimes had difficulty in pronouncing words. In the seizure at the funeral there was a twitching of the arms. She noticed the same twitching when he came to her door that night.
David Millar, husband of the previous witness, corroborated as to the midnight call. When witness went to the accused’s house that night he appeared to be dazed and his eyes were glazed. He was sober. Witness had seen the fit at the funeral; the accused lashed out with his hands.
Mrs. Rose Toomey, 48 High Street, mother of the accused, said he was born on 27th June, 1907. He attended St. Patrick’s School. Later he became successively a message boy, a brewery worker, and a miner. He served for a time with the Royal Scots and was discharged; afterwards he joined the Cameron Highlanders under a false name, being again discharged on discovery of the fact. Since then he had been unemployed. He used to leave home for short periods without notice. In 1925 he was found in a fit on the road at Dumfries and was taken to hospital. Thirteen months ago he took a fit in the Cowgate and was treated at the Infirmary. “The doctor said if he did not stop taking liquor it would stop him.” The fits followed upon his taking drink, because he was not accustomed to it. He had not been drinking heavily during the past two years; she had only seen him drunk once: “at the New Year time”—in Scotland a privileged season. Cross-examined—she had never seen her son in a fit. There were times when he was strange and stuttered in his speech. He married in 1932. As a child he was delicate and had been in hospital.
Patrick Toomey, shoemaker in Leith, brother of the accused, corroborated. In cross-examination he said that some five years before, his brother took a fit in the common stair in which they lived. He was then in the Cameron Highlanders. He was kicking and frothing at the mouth and had to be held down for an hour, when he was taken to the military hospital at the Castle. He had seen the accused in smaller fits, once in the house when he had lost his temper. The tie produced for the defence was that which his brother was wearing on the night in question. In reply to the Court, witness never knew of any doctor attending the accused for fits.
Detective-Constable Donald M’Culloch stated that on the morning of 24th January Patrick Toomey called at the Central Police Office and gave certain information, as the result of which the accused was arrested. He was then in bed, asleep. At the Police Office, having been duly cautioned, he made a voluntary statement, as follows: “I met a girl in the Suburban Bar on the night of the 23rd. After having several drinks with her we left the bar about ten o’clock and went from there to a cafe in Leith Street. We had supper in the cafe and went to the King’s Park, entering at Holyrood at 11 p.m. We turned to the right and went along by the High School cricket ground. We stood along the railings for about half an hour.” The statement went on to explain that the accused had proposed to have immoral relations with his companion and asked how much she wanted. The girl said her fee was ten shillings, but her admirer would only go the length of half a crown, which he tendered for her acceptance on the amazing grounds that he was a married man and was unemployed! This offer the girl declined, and made an observation which annoyed him. “I struck her a blow on the face,” concluded the statement. “She started to scream, and I ran away and left her clinging on to the railings at the side of the cricket ground.” (This is a very inadequate account of his proceedings, as wc shall find when we hear what was the condition of the body.) Questioned as to the identity of the missing girl, Toomey said: “I know her only as Rita. She stays in West Bowling Green Street.” Thereafter the officers searched the Park in the vicinity of the railings of the cricket ground, but found nothing to support the accused’s statements; so they returned to question him further. “I will take you to where the girl is,” said he. Witness took him in a car along with two other detectives to the King’s Park. When they entered the Park the accused asked to be taken to the south end of the Radical Road—the famous path which skirts the base of Salisbury Craigs. “Come along this way,” he cried, and the party went about 100 yards northward up the Road, and by his direction turned into an old quarry and climbed over the rocks into the Hunter’s Bog till they reached a bunch of whins. There Toomey halted, with the remark: “If you find the coat you will find the girl.” Witness went in the direction the accused indicated. “I made a search, and among the whins I found a coat, and immediately afterwards, the body. The accused had led us to within 25 yards of the spot. The body was lying on its right side, face downwards, with the arms underneath. It was practically nude and obviously dead. The time was ten minutes to seven and it was quite dark.” The accused was then taken back to the Police Office, and Dr. Douglas Kerr, Surgeon of Police, was driven by witness to the place where the body lay. Photographs were taken, and the body was removed to the City Mortuary. When it was lifted up, a piece of blue cloth was seen to be tied around the neck, and underneath it was protruding part of a man’s necktie. Witness identified the necktie produced as that tied round the dead girl’s neck. Her hands were crossed in front of the breast and bound together with a piece of blue cloth similar to that tied round the neck. There were also found nearby a coat and hat, stockings, and other garments which had been stripped off the body, and in a whin bush a handbag, empty save for a halfpenny. On the accused being searched there was found upon him a handkerchief, stained with blood and having adhering to it small particles of grass. When charged with murder the accused replied, “I have nothing to say.” He appeared in no respect abnormal, was quite sober, and spoke with perfect clearness, nor did he complain of any loss of memory. Witness saw nothing about him or what he said to suggest that he had not been in full possession of his senses that night.
Cross-examined—After his first fruitless search witness again saw the accused, who was anxious to know if the girl had returned to her home. He remarked, “Someone must have been with her after I left her.” Witness found near the body an empty purse and a powder-puff, but did not find any blue beads. (These beads were never found; probably their string was broken in the struggle, and they were scattered among the whins.)
Detective-Constable Alexander Telfer gave corroborative evidence regarding the information received at headquarters and the visit to the King’s Park. Detective-Inspector John Sheed identified the several articles found near the body, also the clothes worn by the accused: a suit and three shirts, together with the handkerchief having blood and grass upon it. Witness saw nothing unusual in the accused’s appearance, except that he was very pale.
Dr. Sydney Smith, Professor of Forensic Medicine in the University of Edinburgh, stated that on the instructions of the Procurator-Fiscal he performed, with the assistance of Dr. Douglas Kerr, a post-mortem examination on the deceased, the result of which was embodied in a Joint Medical Report, dated 24th-25th January, 1934, from which the following particulars appeared:
“The body was that of a young adult woman, naked except for a petticoat and singlet, which were pulled up over the shoulders. The hands were tied together tightly at the wrists with a piece of blue material, tied in a reef knot. Around the mouth and throat was a blue ligature, tied in a double knot on the right side. This passed first round the neck, then over the mouth, then again round the neck. Below this was another blue ligature, which was tied very tightly around the mouth with two turns, and forcing the tongue firmly against the hard palate and the back of the pharynx.
“Under the first ligature there was a man’s necktie, tied tightly round the neck twice with the knot in the front, deeply compressing the tissues of the neck and forming a groove just above the thyroid cartilage.
“The body was in a state of complete rigor mortis and the surface shewed marked signs of post-mortem discoloration. The face, ears, and hands shewed deep congestion of the tissues. The left eye was blackened, and the tissues round it and round the left cheek were contused and swollen. Blood was issuing from the nose and mouth. There was a large bruise over the chin extending to both sides of the lower jaw, but particularly to the right.
“There were a number of scratches and small abrasions on the back and front of the body and on the limbs, apparently due to the body rolling over thorns or bushes. There was blood and grass on the palms and surface of both hands.” Certain lacerations of the private parts were also noted.
“From the above examination,” concluded the report, “we are of opinion that death was due to asphyxia, due to the pressure exerted by the ligature round the neck, and to the closure of the upper air passages by the ligature in the mouth pressing the tongue upwards.
“We are further of opinion that the deceased received severe blows upon the face, chin, and mouth shortly before death, and that a blow from a blunt object or heavy pressure had been inflicted upon the private parts shortly before death.”
Professor Sydney Smith also read a second report by himself and Dr. Douglas Kerr respecting certain stains found on the clothing of the accused. All the stains were due to blood of human origin.
Cross-examined—The amount of blood found on the accused’s clothing was very small. “The blow on the face might be quite disconnected with the strangulation which was the cause of death?—I should say the blows on the face were delivered just shortly before death. How shortly?—It is impossible to say. An hour or two?—I should not say an hour or two. I think less. You examined the body about seven hours after death. Are you in a position to say that some of these bloodstains were not the result of injuries a couple of hours before death?—It would be difficult to say.”
Dr. Douglas Kerr, Surgeon of Police, Edinburgh, gave corroborative evidence and concurred in the reports as true.
Dr. David Henderson, Professor of Psychiatry in the University of Edinburgh; Physician-Superintendent, Royal Edinburgh Hospital for Mental Disorders; and Physician-Consultant in Psychiatry to the Royal Infirmary, Edinburgh, stated that in accordance with instructions received from the Procurator-Fiscal, he visited Saughton Prison on 27th and 31st January and made an examination into the mental state of the accused. Witness also interviewed his mother and his wife, who furnished a detailed account of his life-history. The results were embodied in a report, dated 6th February, 1934, which witness now read:
“He was a delicate child, who gradually acquired better health and developed in the same way as the other members of the family. During his adolescence and adult life certain significant features appeared which require mention. He was unstable and erratic, and on several occasions left home and employment without warning, so that he was reported as ‘missing.’ There is no evidence to shew that he was not perfectly conscious of what he was doing. On two occasions he is stated to have threatened to commit suicide: once by filling the sink with water and stating that he would drown himself; on another occasion four or five years ago, when he threatened to take poison. His mother mentioned a peculiar incident, when on one occasion he tied his little sister into a chair. He has always been subject to fits, which have occurred when he was under the influence of liquor, and for which he was treated, on one occasion at least, in the Royal Infirmary, Edinburgh. About two years ago he is reported as having had another fit, while attending a funeral and not being under the influence of drink.
“The above disorders of conduct have been mentioned in detail, because they have been taken into consideration when estimating the prisoner’s mental state.
“The prisoner is a married man, 26 years old, who had a clear realization of his position and knew the charge against him. He was composed in his bearing, co-operated readily in my examination, and gave no evidence of any flagrant mental symptoms. On the contrary, he behaved in a perfectly normal manner, shewed no emotional instability, and denied that he had ever suffered from hallucinations or delusions. He had a clear appreciation of time and place, and his memory was excellent both for remote and recent events.
“Physically, there was no evidence of any organic disease of his nervous system.
“Comment.
“On the basis of the above examination I am of the opinion that the prisoner is of sound mind and is fit to plead.”
In reply to the Lord Advocate, witness stated as his definite opinion that the accused was sane. Asked whether he had formed a conclusion with regard to the suggestion of epilepsy, witness said: “I have come to a conclusion, and I have listened to the evidence given this morning. I have not been impressed by the history of the so-called epileptic turns.” “If a man suffers from an epileptic fit, loss of consciousness is an invariable feature, and of course, as a result, loss of memory?—Yes. Did he complain to you of any lapse of memory when telling you his story?—No. I think one can fairly and conclusively rule out the possibility of an epileptic fit in these circumstances. There might be a case where a man may be neither mentally defective nor insane, who may yet suffer from diminished responsibility, and I ask you to give the jury your considered opinion whether this man can be said, in your view, to be fully, or only partially, responsible for his actions?—Taking into consideration the whole history of this man from his early years—his ill-health as a child, the fact that he did not do well at school, the further fact that he leaves home impulsively and stays away, and also the fact that on two occasions he has threatened suicide, and that he has been subject to emotional attacks of some kind—I would be willing to go so far as to say there was diminished responsibility. A certain amount of alcohol would tend to lessen the sense of responsibility in a man of this type and to make him more unstable. Apart altogether from alcohol, would you regard the accused as a man of unstable mentality?—I would. With a somewhat narrow margin of self-control as compared with a normal man?—Yes. And in that sense incompletely responsible for his actions?—That is correct. And liable under stress to give way to conduct which a normal man would resist?—Yes.”
Cross-examined by Mr. Dykes—Epilepsy was an exceedingly common cause of crimes of violence. “If these attacks were not epileptic, can you suggest what they were?—They might be merely hysterical or emotional.” Re-examined—There was nothing to suggest that the accused had suffered from any of these complaints on the night of 23rd-24th January. By the Court—“Assuming it were proved in this case that the accused did commit the acts set forth in the indictment, speaking from the medical point of view and on your responsibility as a mental specialist, would the accused in your opinion be wholly or only partly responsible?—Only partly responsible. Is that your considered judgment?—It is, my Lord.”
Dr. William M‘Allister, Bangour Mental Hospital, described three visits paid by him to the accused in Saughton Prison on 26th January, 6th February, and 9th February respectively, and read the report of his several examinations. Witness failed to find any evidence of abnormality, except that, according to accused’s own statement, he had suffered from epilepsy from childhood. “The account of the ‘epileptic’ seizures,” continued Dr. M‘Allister, “was by no means typical. . . . These seizures were invariably associated with drink.” Witness found nothing in the accused’s condition to warrant the suggestion that he suffered from epilepsy. The description of the “fits” was unlike epilepsy. There was no suggestion that on the day of the tragedy, or at any time near that date, the accused had had a “seizure.” With a view to clearing up the question of epilepsy, however, witness proposed to see him again at intervals, and to furnish a further report. This witness did on 20th and 27th February. On neither occasion was he able to elicit any indication of mental disorder. On the contrary, on both examinations he found the accused perfectly lucid and able to discuss matters quite rationally. He conducted himself correctly in every respect. “I am of opinion,” concluded Dr. M‘Allister, “that the ‘fits’ from which Toomey alleged that he suffered, whatever their character may have been, were not epileptic. . . . My conclusion is that the accused is now sane, and I am unable to find any evidence that he was insane at the time of the alleged murder.” Witness was, however, of counsel with Professor Henderson that the accused’s responsibility was limited and impaired.
(2)
So soon as Dr. M‘Allister had left the box Mr. Dykes, addressing the Lord Justice-Clerk, said: “After anxious consideration of the very important evidence that the Crown has so properly led as to the mental condition of my client, I venture to tender to the Court a plea of Guilty of culpable homicide.”
The Lord Advocate: “In view of the medical evidence I feel I am not only justified, but that it is my duty to accept that plea. Your Lordship will appreciate that I have given the possibility of such a plea being tendered my anxious consideration. My acceptance of the plea is not grounded on any idea that the crime is other than a brutal and cruel one, but simply upon the ground that according to the testimony of very able medical men, who have had the fullest opportunity to arrive at a considered opinion, this man cannot be treated as a man whose responsibility is equal to that of a normal man. It falls within the well-known category in our criminal law, so far as murder is concerned, of a man whose capacity is limited and partial, and who, though neither insane nor mentally defective, is yet in a state bordering on mental deficiency. I accept the plea”
The Lord Justice-Clerk, addressing the jury, said: “The accused, through his counsel, has tendered a plea of Guilty to the crime of culpable homicide, and the Lord Advocate has accepted that plea. In that situation I must ask you to return a formal verdict of Guilty of culpable homicide."
The Clerk of Court then asked the jury’s assent to the following verdict, which they duly gave: “The jury unanimously find the accused Guilty of culpable homicide in terms of his own confession.”
In passing sentence his Lordship addressed the prisoner as follows: “Alexander Toomey, you have pleaded Guilty to a very terrible crime. You brutally assaulted this young woman, and you took her life. It was a cruel, cowardly, and inhuman crime. The life of a prostitute is as precious in the eyes of the law as the life of any other person, and but for the evidence that you cannot be held fully responsible for what you did, you would have been convicted of murder. In view of the medical evidence the Lord Advocate has, in my opinion, acted rightly and mercifully in accepting your plea. It is essential in the public interest and in your own interest that you should be confined for a long period. Having regard to the terrible atrocity of your crime, I cannot limit the sentence to less than that you be detained in penal servitude for the term of fifteen years.”
The accused received his sentence unmoved, and before being taken from the dock to the cells below, he turned and had another look up at the gallery. On the application of his counsel the Lord Justice-Clerk granted permission for him to see his wife and child before he was removed to prison.
Here endeth the first murder. We shall hear a great deal more about this doctrine of diminished responsibility when we come to the second crime. Meanwhile we may note that in the judgment of both the eminent specialists called by the Crown, the accused was perfectly sane and in full possession of his faculties; that the alleged “fits” from which he and his relations said he had suffered, were certainly not due to any known form of epilepsy, and that in none of them had a doctor been called in to attend him.
(3)
Persons curious in criminology will find an account of the scientific aspects of the case in Professor Henderson’s learned—and for the mere laymen, bewildering—book, entitled, Psychopathic States, p. 56 (London: Chapman & Hall, 1939). After perusal of this perturbing work I have grave doubts whether I myself ought any longer to be at large! We learn that the prisoner—this was not disclosed at the trial—“had previously been in the hands of the police for (1) theft and (2) housebreaking.” “Here, then,” observes the erudite author, “we have a strange case, a so-called motiveless murder, which is best understood in terms of his psychobiological development. The story is that of a young man of poor physique and turbulent disposition who, episodically, throughout his career had exhibited aggressive conduct, finally resulting in murder. . . . Incidentally, the above case illustrates that in Scotland in cases of capital crime we are returning to the doctrine of ‘partial insanity,’ but the term ‘partial’ is being used in a different sense from formerly. In the past ‘partial’ was used to designate a form or type of mental disorder, a monomania; now it is being held as synonymous with mitigating circumstances.”
Still, despite these esoteric and recondite theories, I am old-fashioned enough to think that here the accused, in Lord Brax-field’s famous phrase, would have been “nane the waur o’ a hangin’.”
II
THE MURRAYFIELD MURDER
For the experienced reader mention of murder in Murrayfield will recall the pleasure derived from old perusal of R. L. Stevenson’s delectable tragi-comedy, The Misadventures of John Nicholson, and he will see again in memory’s glass “the house at Murrayfield—now standing solitary in the low sunshine, with the sparrows hopping on the threshold and the dead man within staring at the roof—and now, with a sudden change, thronged about with white-faced, hand-uplifting neighbours, and doctor bursting through their midst and fixing his stethoscope as he went, the policeman shaking a sagacious head beside the body.” The house itself, familiar to the novelist’s youth, is real enough and still stands among the hollies of its high-walled garden; but the murder is a murder of the mind, conceived by him as an appropriate happening in such a scene: a spot with Ambrose Bierce’s “suitable surroundings."
Curiously, in 1813 a horrid murder was in fact committed in the near neighborhood, when an old man was killed and robbed by two young ruffians on the Edinburgh-Corstorphine road, a quarter of a mile from Coltbridge, a little to the westward of the road below “Belmont,” leading to Ravelston Dykes, now Ellersly Road—an unusual homicide of which I shall presently furnish an account. Here and now, however, I will have my hands quite full enough in dealing with the latest atrocity of which Murrayfield has been the theatre.
(1)
It is a strange coincidence—and an additional link between the two cases—that while the first we see of the King’s Park murderer is when he knocks at his aunt’s door in the small hours and tells her, “I have struck a girl in the Park,” the first appearance of the Murrayfield murderer is equally dramatic. At 10.45 on the morning of Sunday, 7th August, 1938, a young man entered the West End Police Station in Torphichen Place, Edinburgh, and announced to the officer on duty: “I killed a woman last night in ‘Ormelie,’ in Corstorphine Road. The body’s in the grounds. It’s Sir William Thomson’s house. He’s on holiday."
The man was James Boyd Kirkwood, thirty years of age, a gardener by trade, who lived with his wife and child at 5 Rose-burn Street, and was then employed to tend the grounds of “Ormelie,” the mansion belonging to a former Lord Provost of Edinburgh. Examination of the house by the police left no doubt that a bloody and ferocious crime had in fact been perpetrated therein, and a search of the grounds disclosed, buried in a grave which had been dug in a potato patch in the garden, the dead body of a young woman. It was identified as that of Jean Ronald Powell, who lived at 10 Roseburn Place, and was employed as an assistant in a Haymarket dairy. Following upon this discovery, Kirkwood was arrested on the charge of murder and was in due course committed for trial.
Tuesday, 8th November, was the appointed date. Much local interest had been aroused by the dreadful circumstances of the crime, and despite the wet weather, a long queue began to form in the Parliament Square several hours before the doors of the High Court of Justiciary were opened to the public. The Court was crowded throughout the proceedings and many were unable to obtain admission. The Lord Justice-Clerk (the Right Hon. Lord Aitchison) presided; the Solicitor-General (Mr. J. S. C. Reid, K.C.), assisted by Mr. L. Hill Watson, K.C., and Mr. R. H. S. Calver, Advocates-Depute, conducted the prosecution; the Dean of Faculty (Mr. W. D. Patrick, K.C., now Lord Patrick), and Mr. A. M. M. Williamson, advocate, appeared for the defence. With such a personnel and a crime so singular, one looked forward to a trial of exceptional interest. As a matter of fact it proved one of the most ineffective of the many to which it has been my lot to listen. This was due to the manner in which it was handled, not to the intrinsic quality of the facts. The accused, a powerfully built young man of average height, whose left arm was crippled by infantile paralysis, was seated in the dock between two police officers. He surveyed attentively the crowded Court-room and listened to the proceedings with complete composure, occasionally addressing to his official guardians some comment upon the evidence. A special plea was intimated by his counsel: “The pannel pleads Not Guilty, and further, that at the time of the acts charged he was insane and not responsible for his actions.”
The terms of the indictment were as follows: “James Boyd Kirkwood, prisoner in the Prison of Edinburgh, you are Indicted at the instance of the Right Honourable Thomas Mackay Cooper, His Majesty’s Advocate, and the charge against you is that, on 6th or 7th August 1938, in the dwelling-house known as ‘Ormelie,’ Corstorphine Road, Edinburgh, occupied by Sir William Thomson, you did assault Jean Ronald Powell, 10 Roseburn Place, Edinburgh, and did strike her on the head with a hammer or other blunt instrument, and did thrust the shaft of said hammer into her private parts to her severe internal injury, and did murder her.” Annexed to the indictment were lists of 99 productions (exhibits) and 39 witnesses for the Crown. The jury included four women; but its composition was of no importance, its functions, by reason of the course adopted, being merely formal.
The first witness called was James M‘Donald Powell (35), brother of the dead woman, who stated that he was employed as a warehouseman and lived at 6 Baxter’s Buildings, Holyrood Road. On Sunday, 7th August, he identified his sister’s body at Edinburgh City Mortuary. Jean was a little older than witness. Both their parents were dead, and for a time she had lived in an orphanage; later she was in domestic service, and at the date of her death was employed in a dairy. She lodged with one Mrs. Swan. Witness saw his sister practically every week-end. She was always in good health and spirits, and led an orderly life. She had once been engaged to be married, but the engagement was broken off. Witness never heard of her knowing anyone named Kirkwood, neither did he himself know the accused. He identified two signet rings and a wristlet watch, found on the body, as those which his sister habitually wore.
Mrs. Lucy Swan, 10 Roseburn Place, stated that Jean Powell had lived in her lodgings for about a year. She worked from nine in the morning till six in the evening, and on Saturdays till one o’clock. She was a most respectable girl. A week before her death she told witness she had an appointment with somebody at two o’clock on Saturday at the corner of Roseburn Terrace. She did not say with whom the appointment was made. After having her dinner that day, Jean left the house shortly before two o’clock; witness never saw her alive again. She now identified, as produced, a red hat, a green coat, a frock, a belt, and a pair of shoes, all which the dead girl was wearing when she left to keep her fatal tryst.
Robert Bell Watters, 34 Roseburn Street, a waiter in a public-house at 59 Roseburn Terrace, stated that he knew the accused as an occasional customer. The last time he was in the shop was on Saturday, 6th August, about two o’clock in the afternoon, when he came in and spoke to another man for a bit, and then the pair went out, returning immediately with a girl whom witness had never seen before, but whose body he subsequently identified at the City Mortuary. [Witness now identified in Court the other man, of whom we hear nothing further.]
Alexander Watt, 15 Watson Cresent, a scavenger in the employment of Edinburgh Corporation, stated that he knew by sight the accused as the gardener employed at “Ormelie.” He passed him daily while he, witness, was on his beat. They talked to each other now and again. On the morning of the murder accused invited witness into the grounds of “Ormelie”; the house was closed and empty, but the accused had the keys and took him in by the back kitchen to a room in which there was a wireless. Witness remained about ten minutes. The accused was not very bright that morning. By the Court—“What do you mean by that?—He was never very cheery. There was nothing special about him that attracted my attention.”
John Walker, Sergeant in the Edinburgh City Police, stated that he had never seen the accused until 10.45 a.m. on Sunday, 7th August. He entered the station at Torphichen Place, went straight up to the counter and said, quite calmly, “I killed a woman last night in ‘Ormelie’ in Corstorphine Road—Sheena Powell. The body is in the grounds. It is Sir William Thomson’s house. He is away on holiday. She works in Dempster’s Dairy.” Accused was not excited. “He had a suspicion of a smile on his face.” Witness warned him to say nothing more about it in the meantime, and rang up the Central Police Office to send an officer from the C.I.D.
Detective-Sergeant David Newberry stated that on Sunday, 7th August, in consequence of instructions received, he went to “Ormelie” in company with Detective-Lieutenant Sheed. The garden gate was locked, but he scaled it and opened a side door, admitting his companion. They went up to the house and found the front door locked. The garage door was open, the key being in the lock. They went through the garage to the rear of the house and searched the outbuildings, greenhouses, etc., but found nothing. He noticed a mark, as of something having been dragged along, on the cement pathway leading to the garden. Near the toolhouse he found a spade, with fresh soil adhering to the upper part. “On crossing a potato patch where there had been some young potatoes growing, I noticed some of the shaws half buried in the soil. This, of course, was a thing no gardener would do. An area of 16 to 18 feet had been disturbed. I secured a spade from the tool-house and commenced digging round about this freshly turned piece of soil. After about an hour’s digging I came upon a lady’s stocking, which I now identify. Continuing, I came upon the leg of a woman.” He communicated his discovery to the Procurator-Fiscal and to the Surgeon of Police and waited until they arrived on the scene. When these gentlemen, accompanied by a police photographer, came, the digging was resumed, and presently the naked body of a young woman was unearthed. This was photographed in situ, and after its removal the grave also was photographed. It, the grave, was 3½ to 4 feet deep. The head was wrapped in a piece of canvas, and there were also found in the grave bits of torn underclothing. On each hand was a signet ring, and on the left wrist a watch, which had stopped at 5.22. The keys of the house having been obtained, witness entered by the back door, accompanied by the Fiscal, the police surgeon, a fingerprint expert, and other officials. Very extensive bloodstains were seen, extending from the back door to the main staircase, which was also stained with blood. On the first landing was a pail, containing brownish soapy water, and a scrubbing-brush. The carpet was bloodstained; both it and the floor had been washed. At the end of the lobby leading to the music-room was found a washing-cloth, and at the foot of some steps a bundle, a hammer, and a piece of soap. Asked as to the condition of the hammer, witness said: “It was very badly bloodstained all over, and had several hairs sticking underneath the split portions of the wood near the head.” The bundle was wrapped up in a sofa cover from the music-room. It contained a lady’s coat, a pair of shoes, a hat, a suspender belt, pieces of knickers, a pair of gloves, a handbag, and two sofa cushions. There was blood upon the cushions. On entering the music-room witness saw at once that someone had been washing and cleaning up the place. The carpets had been moved to one side. The condition of the couch attracted his attention: the corner nearest the window was very badly bloodstained. That coincided with the stains on the sofa cushions found outside on the landing. On a table were a bottle of sherry, three tumblers—two whole and one broken—a foreign coin, and a box of matches. Witness then described how he took possession of certain articles of clothing at the accused’s house and of the clothes he was wearing when arrested. On being charged and formally cautioned at the Police Station, accused made no reply.
Dr. Douglas Kerr, Surgeon of Police, stated that he was present in the grounds of “Ormelie” when the body was unearthed and immediately examined it after its removal from the grave. The woman had been dead approximately 21 hours; his examination was made at one o’clock, so she died about 4 p.m. the previous day. Next day, in the City Mortuary, assisted by Dr. Ogilvie, witness made a further examination of the body and prepared a report, which he now read. The injuries found are too horrible and shocking for transcription. The head was completely shattered. Shewn the large heavy hammer found beside the bundle in the corridor, witness said it was a most likely instrument to have inflicted the injuries. Tremendous violence must have been used. Other and even more revolting injuries had been inflicted with the shaft of the hammer; these were caused before death. With regard to the accused’s clothing, spots of blood were found upon his shirt. They were due to spurting. If he were not wearing his coat and waistcoat, and was striking the woman on the head, after the first or second blow blood would spurt; or when he drew the hammer back to strike, some drops of blood might be thrown off. By the Court—“As regards the head injuries which you found, you say that tremendous violence must have been used. Can you say whether there had been a series of violent blows?—There must have been at least seven blows. Four of them caused fractures of the skull, the others were glancing blows. I think the woman was lying on her back in the corner of the sofa and moving her head about, trying to dodge the blows, and these just made a glancing blow, instead of a direct one like the others."
The next witness was James Kirkwood, the accused’s father, who stated that his son was born in September, 1907. His first illness was at the age of four, when he suffered from infantile paralysis, which permanently affected his left arm. At the age of 17 or 18 he began to take fits, which continued to recur for three or four years, sometimes as many as three or four in one day. He was terribly strong when in a fit, on one occasion wrenching the bars of an iron bedstead. In September, 1925, he was treated for fits at Glasgow Royal Infirmary, and after that the fits were less frequent. The last time he had a fit, so far as witness knew, was in 1928, when he was found lying unconscious on the road. At home he worked on witness’s farm until 1932, when he left to become a gardener. He married in 1934. Witness only once saw his son the worse of drink.
Up to this point the learned Dean of Faculty had not put a single question in cross-examination of any witness, but he now proceeded to cross-examine this one. In none other of the many murder trials attended by me have I seen counsel for the defence refrain from cross-examining the Crown witnesses. Doubtless the learned Dean had, as we shall see in the sequel, good reason for adopting so unusual a course, whereby the prosecution was, to some extent, defeated and the safety of his client’s neck assured. Witness said that when the accused began to take fits they were living at Inverkip, where he was attended by Dr. Taylor of Skelmorlie, who had since died. Sometimes his fits lasted for three hours, and he might have three in one day. When he was 17 or 18 he wandered away from home and was found in Port Glasgow. In 1927 the family removed to Dunfermline. His son left, saying he was going to join a ship at Bo’ness; but they learned he was found unconscious on the road in Bishopton, near Glasgow. He never had anything to do with the sea. About 1930 his son obtained some arsenic from a local chemist; he said he wanted it to kill weeds in a garden where he worked; witness became alarmed and informed the police. His son frequently complained of headaches, for which he took aspirins. By the Court—“When these turns you have told us about came on, did they do so suddenly, or were there any warning signs that the fits were coming on?—No. There were no warning signs.” It is noteworthy that while this witness in giving his evidence was visibly affected, his son in the dock exhibited no feeling whatever.
Professor Henderson, of the Chair of Psychiatry in Edinburgh University, the distinguished alienist whom we have already met in the King’s Park case, stated that, as instructed by the Procurator-Fiscal, he visited the accused in Saughton Prison on 20th August. Witness chanced to have seen him some three years before in Edinburgh Infirmary, when treated for poisoning—an attempted suicide. Accused recognized him at once. They had a long conversation. He was quite composed and did not shew any emotion. He had no hallucinations or delusions; his memory was intact and his intellectual faculties were well preserved. Witness came to the conclusion that he was then sane. “A person who has suffered from infantile paralysis has a sense of differentiation from his fellowmen,” said witness; but that would not affect his sanity or responsibility. Witness had come to the conclusion that the fits, as described, were epileptiform. A person’s mentality and character might be altered by the occurrence of such fits. From the interview, and from the history of the case prior to 6th August, witness considered that the accused was sane at that date. Although there was no evidence of the man having had a fit for eight years, witness regarded the history of his former fits important. The Solicitor-General—“Can you offer any definite opinion as to whether, when his crime was being committed, the perpetrator was able to appreciate what he was doing?—I consider that he was able to appreciate what he was doing."
Cross-examined by the Dean of Faculty—If there was a long-continued subjection to epileptiform fits, some deterioration of mental capacity would be likely. A person was apt to become, and to be, more irritable and unstable emotionally than would otherwise be the case. Such people were inclined to be moody and morbid in their outlook; they might not have the full responsibility which a normal person has for his actings. “You may examine such people day after day, and say: ‘These people are sane; they are not certifiable’?—Yes.” Under stress or emotion they might act in an irresponsible manner; their responsibility has become diminished. When witness saw the accused in the Infirmary he was suffering from atropine poisoning, taken in the form of eye-drops, which he had swallowed during a domestic quarrel, remarking to his wife: “That will finish me.”
Re-examined by the Solicitor-General—Witness was satisfied that the accused was an epileptic and had an epileptic constitution, and that he was a man who, in any circumstances of any emotional value, was unlikely to act with the same judgment, reason, and foresight as one who did not so suffer. “Can you explain to me in what way this man’s self-control differs, in your view, from the self-control of a hasty and ill-advised, but nevertheless fully sane person?—I can only point to the fact that in this man we have a history of years that he suffered from epileptic fits, and in these circumstances that he differs from the type of individual you have drawn. Did the circumstances of the attack have any influence with you? We were told that there must have been no fewer than seven violent blows with the hammer, probably while the man was holding the woman’s neck with his other hand?—I think that would be an indication of the point I have stressed.” By the Court—“But might not a sane man commit a crime of that kind?—Yes; but he is less liable to commit a crime of this kind than a man so suffering.” Witness did not suggest that the crime was committed while the man was subject to an actual attack. There must be permanent deterioration of his mind, independent of the onset of an attack. He assumed that something happened in that room to start off the man’s violent behaviour. By the Court—“If he was insane when he committed the crime, it would be a mental derangement associated with epilepsy. Other forms of mental derangement could be ruled out absolutely. It was a temporary attack. At the present time the man was perfectly sane and normal.” With regard to the legal doctrine of diminished responsibility, looking to this man’s undoubted epileptic history, witness would not think it safe to proceed upon the view that at the time of the crime he was a fully responsible person. There would be a condition of mind falling short of insanity that, medically, would diminish his responsibility. That was witness’s considered judgment.
Dr. Ivy Mackenzie, a Glasgow mental specialist, stated that he examined the accused in September and had a long conversation with him. He was perfectly clear in his answers; witness could find nothing abnormal in his intellectual or emotional condition, and was of opinion that he was then quite sane. Having learned the medical history of the man, witness thought his fits were of an epileptic character. One was entitled to assume that at the time of the crime he was under the influence of epilepsy, and was irresponsible. On the whole facts as disclosed, witness thought that when the assault was committed, the assailant was suffering from a definite fit or seizure. By the Court—“Can you say more than that the circumstances of the crime are consistent with its commission during an epileptic attack?—Yes, that is what I say. Is it not very much in the region of conjecture as to what the man’s condition was at the time?—It would also be conjecture to say he was perfectly sane when he did it.”
The Dean of Faculty, in concluding his cross-examination, asked: “Then am I to take it that your true view of this case is that having regard to the circumstances of the crime, the brutal character of the attack, the perverted sexual character of the attack, and to the epileptic history, the only conclusion you can draw is that the crime was committed under the influence of an epileptic seizure?—Yes, I think so.” By the Court—“I understand your conclusion to be that whatever the degree of his responsibility may be, you cannot hold him as a fully sane man at the material time?—No, certainly not. That is my considered judgment as a medical man."
(2)
Dr. Mackenzie having left the box—
The Dean of Faculty. My Lord, in view of the evidence that has emerged, and in view of the information which I myself have in my possession as to this man’s medical history, I feel justified in tendering a plea now that he was of diminished responsibility, and therefore tender a plea of culpable homicide.
The Lord Justice-Clerk. I understand there is no question as to his sanity now?
The Dean of Faculty. None whatever, my Lord.
The Lord Justice-Clerk. You say he is able to plead now?
The Dean of Faculty. Entirely.
The Solicitor-General. In view of the evidence, I feel bound to accept that plea.
The Lord Justice-Clerk. I will need to put it to the accused himself.
The Dean of Faculty. If you please, my Lord. We have explained the whole thing to him before.
The Lord Justice-Clerk. James Boyd Kirkwood, under this Indictment, which charges you with the crime of murder, are you prepared to plead quilty to the crime of culpable homicide?
The Accused. Yes, my Lord.
That plea was accordingly recorded and signed by the accused. One noticed that in doing so he used only his right hand and did not raise his left arm, the book being supported on the rail of the dock by the Clerk of Court. His Lordship thereupon directed the jury to return a formal verdict, which they did as follows: “The jury unanimously find the pannel [prisoner] Guilty of culpable homicide in terms of his own confession.” The Solicitor-General having moved for sentence, the Lord Justice-Clerk, addressing the accused, said: “James Boyd Kirkwood, you have pled Guilty to a most appalling crime. You inflicted terrible injuries upon this woman; you took her life, and afterwards you buried her body. That was a terrible crime. It is quite impossible for me to assess what the precise degree of your responsibility is, but the only sentence I can pronounce upon you that can in any way be commensurate with the crime you have committed, and adequate in the public interest, is that you be detained in penal servitude for life.” The accused, who heard his sentence apparently unmoved, was then taken to the cells below, where he was permitted to see his father before going to prison, and the Lord Justice-Clerk having thanked and discharged the jury, the Court rose.
(3)
One might have expected that Kirkwood, in view of the atrocious nature of his crime and the fact of his admitted sanity, would deem himself fortunate in that he saved his neck. Tried in the good old days by Lord Braxfield or Lord Deas, he would infallibly have been the subject of diminished vitality. But the convict thought otherwise, and dissatisfied with the severity of his sentence, presented to the High Court of Justiciary an application for leave to appeal against it, under the Criminal Appeal (Scotland) Act, 1926. That Court is empowered, if it sees fit, as well to increase as to reduce a sentence; but although wellnigh every criminal convicted of serious crime automatically appeals, I know of no instance in Scotland where a sentence has been increased. Thus the appellant, having everything to gain and nothing to lose, enjoys a fresh run for his money; the Crown is put to needless trouble and expense, and the time of the Court unnecessarily wasted.
The case was called on 15th December before a Court consisting of the Lord Justice-General (Lord Normand), and Lords Moncrieff and Carmont. Mr. Gordon Stott, advocate, appeared for the appellant; Mr. Hill Watson, Advocate-Depute, for the Crown. Kirkwood occupied his old seat in the dock, between two prison warders, and listened to the proceedings with his wonted composure. The Court was again crowded, shewing the public interest which the case aroused.
Counsel’s submission was that in view of the whole circumstances of the case, and in particular of the mental condition of the appellant as established at the trial, the sentence was not only excessive, but so much so as to be in itself a miscarriage of justice. Evidence was given at the trial on behalf of the Crown by two experts in mental diseases. Professor Henderson stated that at the time when he examined him the appellant was sane, and was of opinion that he was sane on 6th August, the date of the crime, and able to appreciate what he was doing. That was somewhat qualified by a later statement by the same witness, who said he was satisfied that Kirkwood was an epileptic and one who, in circumstances of emotional stress, was unlikely to act with the same judgment, reason, and foresight as a person who did not so suffer. In his opinion Kirkwood was not a fully responsible individual. Dr. Mackenzie was of opinion that the crime was committed under the influence of an epileptic fit, and that the accused could not be held as a fully sane man at the time of the crime. In view of these facts, counsel submitted, the sentence was one of appalling severity. With regard to the protection of the public and any precaution to that end, that must not be allowed to take the form of the oppression of any individual, particularly one whose mental condition was like that of the appellant. Doubtless the day would come when such a sentence in the circumstances would be regarded as barbarous.
Mr. Hill Watson said that probably what weighed with the presiding Judge at the trial was the extraordinary brutality of the crime, and in addition, the medical evidence was clear that this man was of a type who might indulge in crime of that nature without any warning, and one who was most dangerous to the public.
The Lord Justice-General intimated that the case would be sent for consideration of the whole Court (thirteen Judges).
On 23rd January, 1939, the final hearing of the appeal took place in the High Court before eleven Judges—the trial Judge (the Lord Justice-Clerk) did not sit, and Lord Pitman was indisposed. Their Lordships, in their splendid Justiciary robes of scarlet and white, presented on the Bench a most impressive sight. The prisoner was as composed as ever, and the Courtroom crowded as before. Mr. G. R. Thomson, K.C., and Mr. Gordon Stott appeared for the appellant; the Solicitor-General and Mr. Calver for the Crown.
Mr. Thomson, having dealt with the facts of the case with which we are already familiar, said that following upon the medical evidence, a plea of culpable homicide on the ground of diminished responsibility was accepted by the Crown. The learned counsel proceeded:
At this point, accordingly, effect had been given to what is now an established doctrine of the law of Scotland, namely, that a measure of irresponsibility, short of insanity, alters and reduces the quality of the crime. That was the effect of the tendering and accepting of this plea.
But this doctrine of diminished responsibility has a second effect and a second function. It mitigates the punishment which falls to be awarded. The function of the Court, in the light of this doctrine, as I understand it, is to endeavour to assess how much of the crime is due to responsibility and how much is due to irresponsibility, and then to inflict a sentence that is commensurate with the responsibility.
How, then, did the presiding Judge approach the problem? His Lordship in passing sentence said:
It is quite impossible for me to assess what the precise degree of your responsibility is, but the only sentence I can pronounce that can be in any way commensurate with the crime you have committed, and adequate for the public interest, is that you be detained in penal servitude for life.
Counsel submitted that it was his Lordship’s function as Judge to endeavour to make that assessment. As regards the reference to the public interest, he maintained that there was no warrant for the view that a man who committed a crime, and turned out to be an epileptic, should be shut up for life. In reply to questions from the Bench, counsel said that the man was being sentenced to penal treatment to provide against the public danger and not as a punishment for his crime. Counsel then described at length, and illustrated by authorities, the development of the doctrine of diminished responsibility and its effect upon the punishment to be awarded. The Lord Justice-General pointed out that in the present case the matter of diminished responsibility was already taken into consideration when the Crown accepted the plea of culpable homicide. His Lordship also said that he was not surprised that the presiding Judge had found it impossible to assess the degree of diminished responsibility and translate the result into terms of punishment. That was a divine task, not a human one.
Without calling on the Solicitor-General to reply, the Court reserved judgment.
On 10th February the eleven Judges met to pronounce judgment. The opinion of the Court, which was unanimous, was read by the Lord Justice-General. After complimenting counsel on their arguments at the two hearings, his Lordship said that the appellant’s counsel argued that the Court was bound to assess the guilt and misfortune of the pannel, and that in this case the presiding Judge had failed to do so. Secondly, he said that the protection of the public was not a relevant consideration for a Judge in imposing criminal penalties. And thirdly, he said it was unfair and oppressive to pass an indeterminate sentence on the appellant because of his mental condition, and that such a sentence would prejudice any prospect of his restoration to a normal mental condition and normal responsibility. “I think,” said his Lordship, “that there is no doubt that the defence of impaired responsibility is somewhat inconsistent with the basic doctrine of our criminal law: that a man, if sane, is responsible for his acts, and, if not sane, is not responsible. It is a modem variation of that basic doctrine, justified in each case by medical testimony directed to the special facts of that case. The mental weakness, or weakening of responsibility, is regarded by our law as an extenuating circumstance, and it has effect as modifying the character of the crime, or as justifying a modification of sentence, or both.” When the jury had, under the presiding Judge’s direction, given effect to that extenuating circumstance by reducing the crime from murder to culpable homicide, the Judge had still to consider whether it should have further weight when he was imposing sentence. The presiding Judge had stated that he found it impossible to make assessment of the degree of responsibility, and his Lordship could find no material evidence on which such assessment could have been made. With regard to the separation of the pannel’s own protection from that of the public, his Lordship, having reviewed the respective authorities cited, observed that when a pannel was convicted of a crime committed under an impulse which he was less able to resist than the normal man, and when there was evidence that the impairment of his powers of resistance might come into play after a long interval, during which there had been no premonitory signs of danger, and when the crime had been one of atrocious ferocity, the protection of the public against its repetition was specially relevant. With respect to the effect of an indeterminate sentence on the appellant’s future, his Lordship was satisfied that the prisoner’s mental and physical condition would be carefully considered and treated, and would be reviewed from time to time by the proper authorities. “There is nothing that would justify us in interfering with the sentence,” concluded the Lord Justice-General, “and I think that the appeal should be dismissed. That is the opinion of the whole Court.”
(4)
As a layman who has known one or two cases of epilepsy, I was much struck by the demeanour of the prisoner, as well during the trial as at the two hearings and the dismissal of his appeal. It was admitted that his last recorded fit was in 1928. I had opportunity to watch him closely on those four occasions, and I have never seen anyone more cool and collected, or presenting less sign of that “emotional instability,” which, in such trying circumstances, one so afflicted might have been expected to exhibit. A man apparently more master of his feelings it were difficult to conceive. His imperturbable composure was never shaken. Indeed, he seemed to stand the strain better than some of those officially concerned in the proceedings; and what “circumstances of emotional value” more powerful can be conceived than to be tried for one’s life?
In considering these (and other) cases one is surprised at the small part played in the tragedy by the person who may be termed in a sense the leading lady of the drama. The slaying is done “off”; she is dead and done with. And amid all the fuss and concern for the fortunes of the slayer, but scant respect is paid to the fate of his hapless prey. Here, we have two strong, healthy young women both wantonly butchered in the heyday of life, the one elaborately strangled, the other brutally battered to death, and each, while yet alive, subjected to a further nameless outrage. Pace the psychiatrists, and at the risk of being deemed unduly sentimental, I confess to feeling for the unfriended victims more sympathy than for the interesting executors of their so hideous doom.
Footnote
1 Those caring to hear more of this dreadful business may consult a further account of the deed and the doer in The Riddle of the Ruthvens by the present writer, under the title of “Nicol Muschet: His Crime and Cairn.”