Shortly afterward Mr. Van Ness became partially blind, and was "seized with the same feeling of giddiness" as on the day before. After this he had convulsions, with unconsciousness, for which large doses of chloroform and chloral were given. During the attack the patient repeatedly said it was of the same character as the preceding ones, and referred the trouble to the pit of the stomach and to indigestion.
The next morning (Sunday), about an hour after waking, he took some tea and toast, and in ten minutes was seized with nausea, followed by heartburn and retching, which lasted all day. On Monday morning some beef tea—two-thirds of a cupful—was given him, and in less than an hour as much more, which induced nausea with heartburn. In the evening he was roused, and more beef tea offered him, which he refused because the last dose had made him sick, and he was afraid this would have the same effect. He was, however, prevailed on to take it. After this he fell asleep, but in a short time woke up with violent nausea, burning at the pit of the stomach, and finally vomiting. Not until this occurred did he discover anything wrong with the beef tea: as he vomited it he found it had an acrid metallic taste.[21]
The circumstantial evidence in the case did not amount to any more than, or indeed as much as, in the previous trial. It was distinctly admitted that no motive could be found, Mr. Van Ness testifying that the relations between himself and Mrs. Wharton were most friendly; that he held four thousand dollars of her government bonds, for which she had not even a receipt; that she depended upon him for the completion of her pecuniary arrangements for a contemplated trip to Europe; or, in other words, that she had nothing to gain and much to lose by his death, and that there was no conceivable emotional motive, such as hate, revenge or envy.[22]
No attempt was made to prove that Mrs. Wharton had at any time in her possession strychnia, the poison alleged to have been used by her. As on the previous trial, the case centred upon the expert testimony, but there was no direct chemical evidence, neither the food, the matters vomited nor the bodily secretions having been examined. Some sediment found in a tumbler of punch was asserted by Dr. Aiken to consist largely of tartar emetic. This tumbler was not connected with Mrs. Wharton, except by being found at her house in a position where, in the language of one of the State's witnesses, "hundreds of persons" had access to it. It was carried about in the pocket of a lady inimical to Mrs. Wharton, and into at least one drug-store, before it reached Professor Aiken, whose analysis was as faulty as before. Any tartar emetic present in the sediment might have been procured in a pure form by the simple process of dialysis. The only apparatus necessary for this would have been a glass vessel divided into two compartments by a piece of hog's bladder stretched across it. These chambers having been partially filled with distilled water, and the sediment of the tumbler put into one of them, the tartar emetic would have left the other ingredients and passed into the second compartment. By taking the water out of this and evaporating it, the poison would have been obtained in a pure crystalline state, and might have been brought into court. But Dr. Aiken thought it sufficient for him to "satisfy himself:" as he stated on the witness-stand, he did not consider it his business whether other people were or were not satisfied. Consequently, the court was only favored with a memorized report of the color tests used by him, exactly as in the previous trial. One of the reactions which he said he obtained antimony does not conform to.
Drs. Williams and Chew unhesitatingly stated on the witness-stand that they recognized poisoning as early as the Saturday of Mr. Van Ness's illness.[23] Yet they gave no antidote. They employed on Monday and Tuesday a treatment which, although well adapted to a case of natural disease presenting such symptoms, would in a case of poisoning have materially increased the risk to life. They did not save the matters vomited: they did not save the secretions, which would certainly have contained antimony if Mr. Van Ness had been poisoned as alleged. According to their testimony, Mr. Van Ness received six doses of poison on as many different days, four of the doses administered under their eyes; yet they gave no warning to the unfortunate victim or to his friends. If the theory they upheld be correct, that Mrs. Wharton poisoned both General Ketchum and Mr. Van Ness, the extraordinary spectacle was presented of one man lying dead in the house from the effect of poison, of another receiving day after day the fatal dose with the knowledge of the attending physician, yet no antidote given, no warning word put forth, no saving of the evidences of guilt! It would seem as though silence at a trial would best become gentlemen with such a record, yet they were the only experts who asserted that strychnia was the sole possible cause for the attack of the 24th of June, and tartar emetic of the subsequent attacks.
The experts for the defence asserted that the convulsion of Saturday could not have been caused by strychnia or other known poison; that although the symptoms of the later attacks resembled those of tartar emetic poisoning, they were not identical with those usually produced by that drug; and that it was exceedingly improbable that these attacks were due to the poison named, because obvious natural causes for them existed.[24]
The impropriety and total insufficiency of our methods of criminal prosecutions were very strongly shown by this trial. One member of the jury could barely write his name, and not more than one or two of them were in the lowest sense of the term educated; no record of the testimony was kept by the court, and none, except in the very beginning, by the jury, who must therefore have been guided chiefly by impressions, lawyers' speeches or newspaper records; the feeling amongst the populace, with whom the jurymen freely mingled, was so bitter that one of the experts was barred out of his lodgings at ten o'clock at night, openly because he was for the defence of Mrs. Wharton; the newspaper which circulated most largely in the place misrepresented the testimony, and devoted its columns to scurrilous attacks upon the integrity and professional ability of the medical witnesses for the defence. Yet under these influences, mazed and confused by the subtleties and partial statements of the lawyers, these twelve honest but ignorant men were called upon to decide between physicians offering precisely opposite opinions. It is well when this so-called administration of justice ends as a monstrous farce and not as a tragedy.
The conduct of the Wharton-Van Ness trial would have been far different if the expert testimony had been what it ought to have been. If the excretions of Mr. Van Ness had been put in the hands of a properly-qualified chemist, by finding the metal antimony or by proving its absence he would at once have settled the case. As it is, there is no proper evidence of the guilt of Mrs. Wharton. The probabilities are in favor of her innocence, because the symptoms were certainly widely divergent from those induced by poison, if not, as I believe, absolutely incompatible with poisoning. The medical gentlemen who attended Mr. Van Ness, by destroying all the evidence, have made a just conviction and an absolute proving of innocence equally impossible.
If it were necessary, further illustrations of the deficiencies of our criminal processes could be detailed. Some little time since, upon the chemical evidence of Professor Aiken, a poor colored woman was hung in Anne Arundel county, Maryland. She died protesting her innocence, and the general impression appears to be now that she did not commit the crime. A prominent member of the Maryland Bar told me recently of a case tried in that State, in which the accused, as he stated, certainly did kill the deceased with arsenic, yet in which, by showing the insufficiency of Professor Aiken's analysis of the stomach, he obtained the acquittal of the prisoner.