Reports of Trials for Murder by Poisoning; / by Prussic Acid, Strychnia, Antimony, Arsenic, and Aconita. Including the trials of Tawell, W. Palmer, Dove, Madeline Smith, Dr. Pritchard, Smethurst, and Dr. Lamson, with chemical introduction and notes on the poisons used

by G. Lathom Browne; active 19th century C. G. Stewart

[APPENDIX C.], p. [342].

L’ANGELIER’S DIARY.

At the close of the fifth day, after putting in the bulk of the letters, the Lord Advocate proposed to read entries in L’Angelier’s pocket-book from the 16th of February to the 14th of March, 1857, in support of the first and second charges. They were undoubtedly in his own handwriting, and statements of what he did on those days. It was objected that the book was not regularly kept, that the corroborative evidence was not sufficient, and that two of the entries were contradicted by witnesses who had been examined. The Court took time to consider, and on the next morning delivered the following judgments.

The Lord Justice Clerk.—“The admission of hearsay evidence was an established rule in the law of Scotland, but under those restrictions and conditions, which went in many circumstances to its entire rejection. What was now proposed to be admitted was this—certain memoranda or jottings made by the deceased, in which certain things were said to be contained, which went directly to the vital part of this charge. The Dean of Faculty felt so strongly that he did not scruple to state what the purport of one of these was, in order to show the immense materiality of the point. It was certainly most important for the Court to take care that the rules of evidence were not relaxed merely because it appeared that the matter tendered was of the highest importance to the case. Before evidence could be received and allowed to go to a jury, it must be shown that such evidence was legally competent to be tendered against the prisoner. That was the rule also in civil cases. It was of vital importance in considering whether this evidence was admissible, to ascertain in what circumstances, and, if possible, from what motive, and at what periods these entries were made. Now it was a most remarkable fact that there was no entry regarding the prisoner, or the circumstances connected with her, before the 14th of February; and at that very time the purpose on her part of breaking off the engagement with him and of demanding her letters back had been communicated to the deceased; and his purpose and resolution not to give up the letters and to keep her to her engagement were avowed and made known, as it appeared from evidence prior to that date. Then he had a purpose in writing these memoranda—a purpose obviously to strengthen his hold over the prisoner, not only by refusing to give up the letters at that time and afterwards, but probably with the view to hold out that he had a diary as to their interviews and communications, so as to endeavour to effect his object of preventing the marriage, and of terrifying her into giving up her engagement with Mr. Minnoch. He (the Lord Justice Clerk) made this observation not merely with regard to the weight and credibility of these entries, but with regard to their admissibility; because in the case of hearsay evidence one could ascertain from the witnesses the time the statement was made, all the circumstances and all the apparent motives which could be collected as to the statement being made by the deceased. But when we could not know with certainty the motive with which the man made the entry, or, perhaps, as in this case, could perceive reasons why he made the entry as against her, intending to prejudice her in one way, not of course with reference to such a trial as this, but with reference to her engagement, he thought it could not be said that this came before the Court as a statement recorded by him as to indifferent matters, or as to matters in which he might have not had a strong purpose in making the statement. Further, it might be a record of a past act. He felt the force of what the Lord Advocate had said, that supposing in this book there had been an entry that this man purchased arsenic, would not that have been available in favour of the prisoner. An illustration of this point had been suggested to him by a person whose authority and experience were of the very highest. Take an action of divorce against the wife where the paramour was dead; would an entry in any diary of his that he had enjoyed the embraces of this woman on such a night in the absence of her husband be proof against the wife? He thought not. What was proposed in this case was to tender in evidence a thing altogether unprecedented, according to the research of the Bar and the Bench, of which no trace or indication occurred in any book whatever, viz., that a memorandum made by the deceased should be proof of the fact against the panel in a charge of murder. He was unable to admit such evidence; it might relax the sacred rules of evidence to an extent that the mind could hardly contemplate. One could not tell how many documents might exist and be found in the repositories of deceased persons; a man might have threatened another, he might have hatred against him, and be determined to revenge himself, and what entries might he not make in a diary for this purpose? He had a faint recollection of a case in 1808—the trial of a man Patch for murdering Page, or of Page for murdering Patch—in which some letter of the murdered man, prior to his death, was used; but he had been unable to find the case, and he had no notion if it was of the character he had alluded to. However, in the meantime, as the point was perfectly new, and as it would be a departure from what he considered to be an important principle in the administration of justice, he thought this evidence could not be received.”

Lord Handyside.—“The special point is, whether the entries of certain dates—two in number—are to be read and made evidence for the prosecution, as regards the first and second charges in the indictment. The whole of these entries have been written with a lead pencil. I notice this to make the observation that ink and penmanship afford to a certain degree a means of ascertaining whether entries are made de die in diem, thus having the character of entries made daily; or, on the contrary, of several entries having the appearance, by change of ink or of pen, of being made at one time, and so after recollection. Where all the entries are in pencil, there can be no security as to the time when the entries are, in point of fact, inserted, and that they are not ex post facto; or that the original entries have been expunged, and others substituted in their place—whether this be a correction of memory, or with purpose and design of another character. The party making such entries in pencil has entire power over what he has done or chooses to do.” Then alluding to the fact that no authority for such evidence could be found, which entitled the objector to the evidence to throw on the tenderer the burden of showing that it ought to be received, the learned judge continued—“I think the question one of great difficulty—at least I have found it so. Had the writer of the memorandum been living, they could not have been made evidence—of themselves they were nothing. They might have been used in the witness-box to refresh the memory, but the evidence would still be parole. What would be regarded would be the oath of the witness to the facts, time and person; and if distinct and explicit, though resting on memory alone, the law of evidence would be satisfied, irrespective of any aid by memorandums and letters, though made at the same time. It is the oath of the witness to the verity of his oral statement in the box which the law requires and regards. But if the writer has died, is this circumstance to make such memorandums thenceforward admissible as evidence by their own weight? Are they, the handwriting being proved, to be treated as written evidence? That would be a bold proposition. Death cannot change the character originally impressed on the memorandums, and convert them from inadmissible to admissible writings. They are private memorandums, seen by no eye but the writers as such, subject to no check upon the accuracy of their statements, whether arising from innocent mistakes or from prejudice or passing feeling. I do not say that they are to be supposed false and dishonest, for the idea is repugnant, from the consideration that it would be idle to falsify and invent when memorandums are intended to be kept secret by the writer. But it is quite conceivable that vanity might lead to statements being made wholly imaginary, with a view of the subsequent exhibition of the book, and were its admissibility as evidence set up by death, it might become a fearful instrument of calumny and accusation. I speak just now of private memorandums, diaries, and journals, taken in the abstract. As to other writings of a deceased person, such as letters, I do not say these may not become admissible as evidence by reason of death, though during life they could not be used. They thus become analogous to words spoken—to representations made and conversations held—by a deceased person, the proper object of hearsay evidence. It was contended that the principle on which hearsay evidence is admitted would extend to anything written by a deceased person. It is assumed to be a declaration in writing of what if spoken would have been admissible on the testimony of the person hearing it. And on the first view it would seem that the written mode is superior to the oral, from the greater certainty that no mistake is committed as to the words used. But this would be a fallacious ground to rest on, for words written would require to be taken without explanation or modification; whereas words spoken to another are subject to the further inquiry by the party addressed as to the meaning of the speaker in order to a better and more thorough understanding of the subject of communication, the object of making it, and the grounds on which the speaker’s statements rest. And all these things may be fought out in the examination of the witness who comes into court to give this hearsay evidence. The value of hearsay evidence, and the weight to be given to it, come thus to depend much on the account which the witness gives of the circumstances under which the communication was made to him, as to the seriousness of the statement and what followed upon it in the way of inquiry and reply. Now a mere writing in the way of a memorandum or entry in a book in the sole custody of the writer till his death can be subject to no such tests. Its very nature shows that it is not intended for communication. It may be an idle, purposeless piece of writing, or it may be a record of unfounded suspicions and malicious charges, treasured up by hostile and malignant feelings in a moody, spiteful mind. These views impress me strongly with the danger of admitting a private journal or diary as evidence to support a criminal charge. I think the question now before us must be decided as a general point. As such I take it up. If I were to confine myself to the special and peculiar circumstances of this case, I should see much perhaps to vindicate the court in the reception of the evidence tendered. There is to be found in the letters which have already been made evidence much to give corroboration or verification to some at least of the entries in the pocket-book. But I feel compelled to close my mind against such considerations, and to look above all to a general and, therefore, safe rule by which to be guided. I have come, therefore, to be of the opinion that the production tendered as evidence in the case in support, as I take it, of the first and second charge, ought to be rejected.”

Lord Ivory said the opinions just delivered had relieved his mind of a burden of responsibility under which he laboured, and which he was ill able to bear. He had given the most anxious, serious, and repeated consideration to this matter. He had found little or nothing in the way of authority, and no dicta so precisely bearing on the case as to be of any avail. But judging in the abstract, applying the rules as applied to other cases, endeavouring to find a principle by comparison of the different classes and categories in which evidence had been distributed and in which it had been received, he felt himself totally unable to come to a conclusion that the evidence of this document should be excluded from the jury. As his opinion could not in the least degree influence the judgment, he should be sorry to add anything that would even seem to be intended to detract from the authority of the judgment now given; least of all should he be disposed to follow such a course in a capital case, where the judgment was in favour of the prisoner. He would content himself, therefore, with simply expressing his opinion. It appeared to him that this document should have been admitted valeat quantum, and that the jury should have considered its weight, and credibility, and value.

TRIAL OF ANN MERRITT.

Before The Lord Chief Baron Pollock and Mr. Justice Cresswell, at the Central Criminal Court, March 8, 1850.

For the Prosecution: Mr. Bodkin and Mr. Clark.

For the Defence: Mr. Clarkson, by the intervention of the Sheriffs of London and Middlesex.