The Crown also had Dr. Barron, who had attended the post-mortem, and who expressed himself unable to say that arsenic was the cause of the gastro-enteritis.
These witnesses, it may be observed, gave their evidence both as to the symptoms during life and as to the appearances at the post-mortem before the medical evidence for the defense had been called.
The witnesses called for the defense had none of them attended the deceased, but were called as experts in poisoning, viz., Dr. Tidy, a Crown analyst, Dr. Macnamara, and Professor Paul, who all gave positive evidence that neither the symptoms during life nor the appearance after death were such as could be attributed to arsenical poisoning; that, in fact, they pointed away from, instead of toward, arsenic being the cause of death.
The evidence of these witnesses was summarized very fairly by Mr. Justice Stephen.
In the face of such a conflict of medical opinion, it is submitted that Mr. Justice Stephen should have refused to allow the jury to return any verdict of guilty at all.
Misdirections as to Cause of Death
On the first day of his summing-up, however, Mr. Justice Stephen told the jury as to the law under which they were to return their verdict: “You have been told that if you are not satisfied in your minds about poisoning—if you think he died from some other disease—then the case is not made out against the prisoner. It is a necessary step—it is essential to this charge—that the man died of poison, and the poison suggested is arsenic. This is the question you have to consider, and it must be the foundation of a judgment unfavorable to the prisoner that he died of arsenic.”
It is submitted that Mr. Justice Stephen misdirected the jury when he told them to satisfy their minds whether he died from any other disease, inasmuch as the only question before the jury was whether the cause of death was arsenic.
“The question for you is by what the illness was caused. Was it caused by arsenic or by some other means?”