Gentlemen, before I was interrupted, I was going to observe, that in this branch of the evidence my cause is the same with that which is to be supported with so much greater abilities by the Dean of Faculty; and of consequence it would be unnecessary and even impertinent in me to take up your time in arguing at large upon the subject. I have followed the same conduct in the other particulars of the proof, where the pannels are in similar circumstances; and I have only to desire you to apply the same principles to both cases.
Gentlemen, I come now to the real evidence. Some of the witnesses deponed that Mr. Smith was taken up to Brodie’s buildings, and there some of the articles on the table were found, but nothing in this part of the evidence is inconsistent with the innocence of Smith, who might be better acquainted with Mr. Brodie’s shop and yard than the officers, without being a partner in the crimes of which he (Brodie) might be guilty.
The most material circumstance in the proof relates to the finding of the iron crow, the curling irons, and key, in the hole of a wall, and for that reason I reserve it for the last.
There are two capital defects in the evidence of this fact. First, a glaring contradiction concerning the place where the things were found; and, secondly, as glaring a contradiction in the account of what passed at finding them. Middleton says that they were found in Warriston’s Close; Murray, on the contrary, that they were found in Allan’s Close. Middleton told you expressly that the pannel put his hand into the hole in the wall and drew them out; but Murray said that this was impossible, because he had his hands tied behind him: and this witness farther added that he himself drew them out.
The Dean of Faculty (Hon. Henry Erskine).
(After Kay.)
These are no common mistakes; and I ask, what reliance can be had on evidence where two such falsehoods appear within the narrow compass of a few questions? I am willing to grant that there are slight inaccuracies which rather tend to confirm the truth of a deposition than to render it suspected; but you cannot suppose errors like these concerning such marked and important circumstances, as make an impression on the memory equally indelible with any part of the story, and which in this instance constitute its leading features.
I say there must be a radical error here, either in the candour of the witnesses, or in the events which they have related. They are either perjured, or have been deceived, about the articles on your table; and in either case their testimony is good for nothing. It is plain that the iron crow was not found both in Warriston’s Close and in Allan’s Close; the prisoner was not both fettered and unfettered at the same time; and it matters not to me which of the witnesses has been deceived. Whoever it is, it cannot be determined on this trial that any of them spoke the truth; and of consequence the evidence of both must be laid out of consideration.
At all events, gentlemen, what have you more than two solitary witnesses to two contradictory facts, instead of two witnesses to one consistent event? This can never be reckoned good and legal evidence on a trial for life, where equity as well as expediency require the most scrupulous accuracy.
Gentlemen, I have now stated what appear to me to be the most material circumstances in the proof. I have commented on the depositions of the witnesses in so far as they may be thought to criminate my client; and without farther detaining you, I beg leave to conclude by repeating the proposition which I have endeavoured to maintain, that there has not been adduced on this trial sufficient legal evidence to warrant a verdict against Mr. Smith.