One important gain, though, Hastings made without exertion; simply by watchfulness and tactical restraint. The first chauffeur's wife was being examined by the Crown. She had given her account of the earlier incident in the mews, describing how Mrs Barney leaned out of the win- dow; how she was holding 'something bright' in her left hand; how there was a report and witness saw 'a puff of smoke.' Now she had come to the night of Michael's death, and to the one real point at which she might have thrown some l light upon it. 'So you heard the sounds of their quarrelling,' Clarke said. 'Were there any words any important words you could pick out?' 'Yes,' she replied. 'Just before the shot I heard Mrs Barney say, "Get out. I'll shoot. I'll shoot." Now 'I'll shoot' is not at all the same thing as 'I'll shoot you,' which was what the woman had originally told the police; otherwise Clarke would not in turn have told the jury. 'I'll shoot' is as consistent with a threat to commit suicide as a threat to commit murder. If the evidence stood thus and no other witness claimed to have overheard this passage it need no longer conflict with the prisoner's own story. 'You heard her say "I'll shoot"?' Clarke repeated interro- gatively. The rules of British procedure do not permit counsel to put leading questions on matters in dispute to any witness that he himself has called. A leading question, one should point out, is not as common usage would suggest a ques- tion peculiarly probing or embarrassing; it is one so framed as to indicate the answer that the questioner desires or ex- pects. It is not 'leading' to ask 'Where were you yesterday?'; it is 'leading' to ask 'Did you go yesterday to Brighton?' It would certainly have been 'leading' had Clarke at this juncture asked the witness 'Did you hear the prisoner call out, "I'll shoot yo," ' and Hastings, though he sat with folded arms, looking straight ahead, was poised to intervene with an immediate objection. But it did not prove necessary. Clarke bowed to the inevitable and passed to something else. Hastings carefully refrained from mentioning the matter in cross-examination. Any attempt at that stage to emphasise the witness's cardinal omission ('So, after all, you only heard the prisoner say "I'll shoot"?') might prompt her to recon- sideration and retraction ('She first said "I'll shoot," and then after, "I'll shoot you" '). There would be a later and a safer chance to enlarge on this discrepancy. Meanwhile pru- dence prescribed leaving well alone. But there was still of course the earlier shooting to be dealt with, and the court now got its first glimpse of Hast- ings in full action. 10
He began in a tone so soft, so conversational, that specta- tors in the gallery held their breath for fear of missing a single word. 'This incident in the mews it happened late one night?' 'Yes.' 'About eleven o'clock next morning did you see the young man again?' 'Yes.' 4 Was he then leaving the cottage ? ' 'Yes.' 'Was Mrs Barney with him?' Tes.' 'Did they seem friendly?' 'Yes.' 'On the best possible terms?' 'Yes.' Marshall Hall would have paused there and stared hard at the jury. Hastings would no more emphasise a point in such a fashion than Noel Coward would wink at the stalls to stress a witty line.
The questions continued; terse, pithy and exact. They left no room for evasion or misunderstanding. 'You saw this earlier incident while standing at your window ? ' Tes.' 'And the young man was below you in the mews?' 'Yes.' 'Did you give evidence at the police court?' 'Yes.' 'Did you say there that immediately after the shot was fired the young man spoke to you ? ' 'Yes.' 'And in the police court there the matter ended?' 'Yes.' 'But now,' said Hastings, 'I want you to tell us what he said.' That he had touched a highly sensitive spot was attested by the quickness of the Crown's reaction. 'My lord, I object.' Percival Clarke had at once sprung to his feet. 'I submit that what this witness and the young man may have said outside Mrs Barney's hearing cannot be admis- sible. That is why it was not tendered at the police court. And if it cannot be evidence for the Crown, equally it cannot be evidence for the defence.'* He sat down. The judge cast an inquiring look at Hast- ings. 'In all my experience at the Bar,' declared the latter, 'I have never heard such an objection made before. The pro- secution ask a question in the lower court and then they don't allow it to be answered.' It was a perfect example of his gift for deadly ridicule, for deflating opposition in one swift, colloquial phrase. The jury, unversed in procedural technicalities, must have rejoiced in this attractive simplifi- cation well calculated to excite their sympathy if the evi- dence should be ultimately excluded. But the defence was very anxious that the evidence should be heard, and this depended not upon the jury but the judge. Travers Humphreys listened attentively, impassively, as Hastings made his submission on the law. 'Here the prosecu- tion have proved a fact. They have proved there was the firing of a revolver from a window and that the deceased * Clarke was pleading the same rule, but for Crown instead of prisoner, as Marshall Hall had done concerning the barmaid from The Eagle. (See p. 128.)
man at that moment made a statement to a witness. I submit it is always admissible to give evidence of any statement accompanying such an incident.' It was in fact a question involving much more doubt than might have been deduced from the defender's confident air. The judge, although an unsurpassed authority in this field, reflected deeply before giving a decision. 'The matter is not free from difficulty,' he said. 'I think the objection was quite properly taken. But' and the lawyers knew then the de- fence would get their way 'but ... I do not think this evidence ought to be excluded.' The reason why both sides had treated this as a prime issue soon became apparent when Hastings, armed with sanction from the Bench, resumed. 'What conversation passed,' he asked, 'between you and the young man?' 'I told him to clear off,' said the first chauffeur's wife, 'as he was a perfect nuisance in the mews.' 'What did he reply?' 'He said he didn't want to leave Mrs Barney because he was afraid that she might 1$ill herself* To the defence this admission was of immeasurable value. If Michael had previously confided to a stranger that he sus- pected Mrs Barney of suicidal tendencies, what was more likely than that, prior to going away, he would at least try to dispossess her of the pistol? And if he did, what more likely than that a woman of her temperament, whether genuinely contemplating suicide or not, should struggle fiercely to defeat him in this purpose lest her expressed in- tentions should appear frustrated ? . . . It was the beginning, this the beginning of a long series of scores by Mrs Barney's advocate that gradually cemented what had seemed a flimsy case. 11 One such score was to be added before this witness left the box. The defence were not going to disavow the earlier shoot- ing, when Mrs Barney was upstairs and Michael in the mews. But they were going to deny that she had fired out of the window, maintaining she had fired, for effect, inside the room. Others had seen Michael; others had heard the shot; but only this lady spoke of seeing Mrs Barney with the pistol in her hand at the moment it was fired. There was ground for supposing an imaginative faculty occasionally influenced her powers of observation. Hastings brought this out into the light. 'When the shot was fired,' he said, 'you say you saw a puff of smoke ? ' 'I did.' 'How big was it?' The witness knitted her brows. 'Well ' 'As big as that?' Counsel extended his hands about a foot apart. 'Oh no; not as big as that.' 'How big, then?' Hastings asked encouragingly. The witness spread her hands in turn. 'As big as that?' 'Yes.' Hastings nodded slightly. His next two questions seemed to come as afterthoughts. 'I suppose you didn't know that Mrs Barney's revolver contained cordite cartridges?' 'No.' The witness answered with indifference. 'And I suppose you don't know either,' Hastings added casually, 'that cordite cartridges don't make any smoke?' The ten men and two women on the jury may have known nothing of the properties of cordite; but they did know, by applying ordinary sense, that so shrewd a counsel would not make such an assertion if it were open to subse- quent disproof by the Crown. The puff of smoke disappeared into thin air. . . .
The second chauffeur's wife seemed to have seen a good deal less, but heard a good deal more. It was she who thought that on the night of Michael's death more than one shot had been fired, and that they came in quick succession. If the jury thought so too, the outlook for Mrs Barney would be bleak indeed. Once again Hastings sought his ends without direct attack. Keenly aware of psychological resistances, he made no sug- gestion that the lady had been wrong. Instead of pressing her to cut down the number of the shots, he almost appeared to help her run them up. In no time at all she had sworn tq hearing five. 'Quite a fusillade,' observed defending counsel, absently fingering the barrel of the pistol, from which only two bullets had been fired in all. . . . Few yet realised exactly what had happened. They felt instinctively that this sardonic advocate, restrained but masterful, was having his own way and getting what he wanted; they did not at once perceive how much he had wanted nor how far he had gone. There had been none of the orthodox phenomena associated with a crisis in a murder trial; the rising voices, the deepening gravity, the open conflict between witnesses and Bar. All they had heard were some crisp and simple questions asked in the most natural and unpretentious style. But where now was the mews evidence the shouting and the shots ? It was like a conjuring trick but a conjuring trick per- formed without any drum rolls or spotlights or hey prestos. Nor did the conjurer bother to take a formal bow. 12 The witnesses from the mews, for all essential purposes, constituted the whole of the Crown's evidence of fact. But in a trial the emphasis may be more upon opinion the opinion of experts formed after the event. Many have gone to the gallows in consequence of these. Would Norman Thorne have been hanged but for Spils- bury's opinion that no cord was ever passed round Elsie Cameron's neck? Would Seddon have been hanged but for Willcox's opinion that Eliza Barrow died from acute, not chronic, poisoning? Would Rouse have been hanged but for Colonel Buckle's opinion that the nut in his carburettor pipe was purposely made loose ? This is not written in disparagement of experts none will deny that Seddon and Rouse, at least, were rightly hanged but simply to recall again their influence and power. A famous name, an authoritative style, the mystique of science and the glamour of detection these may combine to produce such an effect that juries on occasion find it almost irresist- ible. Unless, of course, the glamour can be stripped off and the mystique penetrated. 13
The experts in the Barney trial were called on the second morning, and Spilsbury was the first to go into the box. He made his usual excellent impression : suave, sure of himself, with every detail at his finger ends, he took great pains to make the jury understand that Michael could not possibly have committed suicide. He made play with the pistol. He explained the nature and direction of the wound. He told of experiments he had made upon a skeleton. It was all im- mensely neat and competent; it bore on every word and movement the authentic Spilsbury stamp. As the pathologist went through this demonstration Hast- ings preserved an appearance of detachment. 'A most inter- esting performance,' his expression said; 'remarkably learned, extraordinarily instructive; but, as the defence is not and never has been one of suicide, it has nothing whatever to do with Mrs Barney or with me.' None the less, he was following most intently waiting for any attempt on Spils- bury 's part to dismiss as impossible the real defence of accident. Although the point might not have struck the ordinary observer, no such attempt was ever made in positive terms. Whatever may have been the general tenor of his evidence, Spilsbury did not rule out accident in so many words. The omission, it seems certain, was one of policy. Both the Crown and their star witness doubtless expected events to trace a long familiar pattern; they thought defending counsel in cross-examination would try his utmost to get Spilsbury's blessing for his client's story. Better to hold direct comment on that story till then. Better leave the accident defence till it was raised. But Hastings was a subtle and unorthodox tactician; he did not mind forgoing the slight chance of Spilsbury's blessing, provided he had not incurred his express condemnation. The crowd was waiting eagerly for a titanic struggle between two such masters in their respective spheres. When Spilsbury's interrogation by the Crown was over, and Hast- ings was seen to be rising in his place, heads craned forward and hearts beat faster. People felt on the brink of an his- torical event. Spilsbury watched Hastings narrowly as the first question was put. 'To qualify yourself to show how the bullet was fired into the body, you had to examine the skeleton of someone else?' 'I had to confirm it on the skelton of someone else,' said Spilsbury. 'Does each human body differ in formation?' 'Yes, in the formation of the bones.' 'And the best way to see how a bullet is fired into a body ... is to look at it, I suppose?' 'Yes,' Spilsbury admitted. They had quickly got to grips. The spectators resettled themselves for a long and thrilling tussle. The next thing they knew was that, incredibly, unaccount- ably, Hastings had sat down. 'Sir Bernard Spilsbury,' he observed later to the jury, 'gave no shred of evidence to suggest that the young man's death could not have been caused in the way that Mrs Barney has always said it was. . . . He did not affect my case. I had no questions to ask him.' This neutralising of the country's crack professional wit- ness was ultimately justified by the strictest of all tests. Meanwhile those in court received a shock of non-fulfilment, the kind of shock you get when you put your foot on a step that isn't there.
14 A more spectacular battle, however, was to come a battle fought out toe to toe with every move in view, a battle in which the art and flair of Hastings were displayed so that laymen no less than lawyers could admire. . . .
Robert Churchill, who followed Spilsbury, was also a leading expert and a seasoned witness who had figured prominently in numerous murder trials. Whenever in a shooting case anything seemed to turn upon the bullets that were fired or the weapon that was used, more likely than not Churchill would be called on by the Crown. Level-headed, matter-of-fact, a savant in his sphere, he shared with Spils- bury an enviable legend of impregnability in cross-examina- tion. Upon that legend a chill wind was now about to blow. Churchill had examined Mrs Barney's pistol and gave his views about it with definite conciseness. It was one of the safest revolvers ever made. It could only be fired by the exer- cise of considerable strength. Therefore the idea of it going off accidentally when no one wished to fire certainly did not commend itself to him. The defence could not skirt gracefully round such evidence as this. It struck at the essentials of Mrs Barney's story. This time when Hastings rose it was no false alarm. He placed the revolver on the flat of his hand and held it out before the witness and the jury. 'Do you seriously say,' he asked, 'that this is one of the safest weapons made?' 'I do,' Churchill replied. 'Where is the safety device?' 'There isn't one.' 'Isn't there one on most good hammer less revolvers?' 'Yes,' said Churchill. 'What I meant was that it's safer than a revolver with a hammer, safer than an automatic pistol.' 'I see.' Hastings suddenly grasped the pistol and held it up aloft. His finger pressed the trigger. Click-click, click- click, click-click it went continuously, with little more resist- ance than a child's cheap toy. 'It doesn't seem to require any terrific muscular strength?' 'It would require more,' said Churchill, 'if the weapon were held loosely.' 'Would it?' Hastings promptly changed his grip and held the revolver as the expert had suggested. 'Would it?' Again he pressed the trigger, quickly and repeatedly, with disdainful ease. And again it was the only sound in the hushed and listening court: click-click, click-click, click- click, click-click, click-click. 'Well,' said Churchill, speaking as best he could in com- petition with the pistol, 'I still say it's safer than an auto- matic.' Hastings kept on pressing the trigger almost languidly. Churchill watched him, a shade uncomfortably. The in- cessant sound of clicking only ceased when it had imprinted itself on every mind. The defender laid the pistol on the desk before him. 'You know the sequence of cartridges found in this revolver?' 'I do, yes.' 'Did they go like this discharged, live, discharged, live, live?' 'Yes.' 'The two discharged cartridges represent shots fired?' 'Yes.' 'Somehow one chamber in between had been passed over ?' 'Yes.' 'Have you noticed something peculiar about this revolver that if you only half pull the trigger the pressure just rotates the cylinder?' 4 Yes.' 'Rotates it, without firing?' 'Yes.' 'It looks, doesn't it, as though some time after the first shot had been fired something had happened to press the trigger, but not to the full degree ? ' 'The cylinder had certainly been moved,' said Churchill guardedly.
Hastings took care not to press the point further, not to involve himself in argument as to what that 'something' was. He relied upon the quicker-witted members of the jury ; they would not fail to realise