The learned Mr. Justice Graham asked the accused if he had any objection to the case being postponed until the next assizes, on the ground, as the prosecution had alleged, that their most material witness could not be produced. His lordship put the case as somewhat of a misfortune for the prisoner, and made it appear that it would be postponed, if he desired it, as a favour to him.
Notwithstanding the judge's courteous manner of putting it, the prisoner most strenuously objected to any postponement. It was not for him to oblige the Crown at the expense of a broken neck, and he desired above all things to be tried in accordance with law. He stood there on his "jail delivery."
Graham was firm, but polite, and determined to grant the postponement asked for. In this he was doubtless right, for the interests of justice demanded it. But to soften down the prisoner's disappointment and excuse the necessity of his further imprisonment, his lordship addressed him in the following terms, and in quite a sympathetic manner:—
"Prisoner, I am extremely sorry to have to detain you in prison, but common humanity requires that I should not let you be tried in the absence of an important witness for the prosecution, although at the same time I can quite appreciate your desire to have your case speedily disposed of; one does not like a thing of this sort hanging over one's head. But now, for the sake of argument, prisoner, suppose I were to try you to-day in the absence of that material witness, and yet, contrary to your expectations, they were to find you guilty. What then? Why, in the absence of that material witness, I should have to sentence you to be hanged on Monday next. That would be a painful ordeal for both of us.
"But now let us take the other alternative, and let us suppose that if your trial had been put off, and the material witness, when called, could prove something in your favour—this sometimes happens—and that that something induced the jury to acquit you, what a sad thing that would be! It would not signify to you, because you would have been hanged, and would be dead!"
Here his lordship paused for a considerable time, unable to suppress his emotion, but, having recovered himself, continued,—
"But you must consider what my feelings would be when I thought I had hanged an innocent man!"
At the next assizes the man was brought up, the material witness appeared; the prisoner was found guilty, and hanged.
The humane judge's feelings were therefore spared.
At the Old Bailey he was presiding during a sessions which was rather light for the times, there being less than a score left for execution under sentence of death. There were, in fact, only sixteen, most of them for petty thefts.