This brief of Messrs. Lumley & Lumley, characterized in the preceding letter of Secretary Blaine as “very able” and “unanswerable,” is too long for reproduction in these pages in its entirety, and hence only the main points are given. The document was prepared at the instance of Lord Russell of Killowen for submission to himself and three other Queen’s Counsel, with a view of obtaining a new trial. It may interest the reader to know that the money required to make this searching analysis by Messrs. Lumley & Lumley was raised by a popular subscription in America, through the good offices of the New York World. The eminent Queen’s counsel, after a full consideration of the analysis of the case, submitted the following opinion:
Opinion—Re F. E. Maybrick
“Having carefully considered the facts stated in the elaborate case submitted to us by Messrs. Lumley & Lumley, and the law applicable to the matter, we are clearly of opinion that there is no mode by which in this case a new trial or a ‘venire de novo’ can be obtained, nor can the prisoner be brought up on a ‘habeas corpus,’ with the view to retrying the issue of her innocence or guilt.
“We say this notwithstanding the case of Regina vs. Scarfe (17 Q. B., 238, 5; Cox, C. C., 243; 2 Den., C. C., 281).
“We are of opinion that in English criminal procedure there is no possibility of procuring a rehearing in the case of felony where a verdict has been found by a properly constituted jury upon an indictment which is correct in form. This rule is, in our opinion, absolute, unless circumstances have transpired, and have been entered upon the record, which, when there appearing, would invalidate the tribunal and reduce the trial to a nullity by reason[264] of its not having been before a properly constituted tribunal. None of the matters proposed to be proved go to this length.
“We think it right to add that there are many matters stated in the case, not merely with reference to the evidence at and the incidents of the trial, but suggesting new facts, which would be matters proper for the grave consideration of a Court of Criminal Appeal, if such a tribunal existed in this country.
(Signed)
“Charles Russell, Q.C.
“I. Fletcher Moulton, Q.C.
“Harry Bookin Poland, Q.C.
“Reginald Smith, Q.C.
“Lincoln’s Inn, 12th April, 1892.”
This opinion was based upon the following points, presented by Messrs. Lumley & Lumley:
Justice Stephen’s Misdirections
The misdirections which are selected for consideration may be conveniently classed, among others, under these headings:
1. As to the facts disclosed in the evidence[265] of the procuring and possession of arsenic by Mrs. Maybrick and of her administering it.
2. As to the cause of death.
A perusal of the summing-up from beginning to end impresses the mind with the feeling that, whenever Mr. Justice Stephen approached any fact offered by the defense which threw light upon the possession and an alleged administration of arsenic by Mrs. Maybrick, he drew the minds of the jury away from it; he played, in fact, the part of the peewit, which swoops and screams in another part of the field on purpose to hide where its nest is, and to draw the attention of the passers-by from the right spot.
Mr. Justice Stephen pointed out to the jury in his summing-up: “You must begin the whole subject of poison with this, which is a remarkable fact in the case and which it seems to me tells favorably rather than otherwise for the prisoner. You must take notice of it and consider what[266] inference you draw from it. In the whole case, from first to last, there is no evidence at all of her having bought any poison, or definitely having had anything to do with procuring any, with the exception of fly-papers. But there is evidence of a considerable quantity having been found in various things, which were kept some here and some there—kept principally, as I gather, in the inner room.[6] ... There is evidence about a considerable quantity of poison in this house, and more particularly about one or two receptacles which were in the inner room, Mr. Maybrick’s dressing-room, as it has been pointed out.”
Misdirection as to Mr. Maybrick’s Symptoms
From the testimony it appears that on the 27th of April James Maybrick, before starting to the Wirrall Races, was sick. There is no actual evidence of vomiting,[267] but he is described as sick, and as feeling a numbness in his legs while walking downstairs, which was an old-standing complaint of his of many years. Both he himself and Mrs. Maybrick told the servants that this was due to a double dose of some London medicine. He got wet through at the races and dined in his wet clothes at a friend’s (Mr. Hobson), on the other side of the Mersey, and did not return home till after the servants had retired to bed; but the next morning, Sunday, the 28th of April, he was taken ill, and Mrs. Maybrick sent a servant off hurriedly for Dr. Humphreys, who had not attended her husband before, but who was the doctor living nearest the house, and in the mean time got some mustard and water, telling him to take it, as it would remove the brandy at all events. Dr. Humphreys attended James Maybrick on the 28th, but was not told by him that he had vomited the day before.
Mr. Justice Stephen, when referring to[268] this, said: “The Wirrall Races were followed by symptoms which were described to be arsenical.” It is submitted that this was a misdirection, the symptom there referred to being sickness, and there was no evidence of vomiting on any of the days immediately succeeding the Wirrall Races. But on the 28th of April the mustard and water was given him by Mrs. Maybrick for the purpose of producing sickness and removing the brandy, and if he had been sick it would have been attributable to mustard and water, not to arsenic.
On the other hand, the medical evidence showed that gastro-enteritis might have been set up either by improper food or drink, or an excess of either; or, again, by such a wetting through as deceased got at the Wirrall Races. On the 8th of May Alice Yapp communicated to Mrs. Briggs and Mrs. Hughes her suspicions that James Maybrick’s illness was due to Mrs. Maybrick poisoning him with fly-papers.
Misdirection as to Mrs. Maybrick’s Access to Poisons
The purchase and soaking of fly-papers is the only direct evidence of the possession of arsenic in any form by Mrs. Maybrick, but the judge told the jury, and it is submitted it is a gross misdirection, that Mrs. Maybrick “undoubtedly had access to considerable quantities of arsenic in other forms,” inasmuch as the only evidence as to such access was that after the death of James Maybrick these two women, Mrs. Briggs and Alice Yapp, who exhibited the most unfriendly feeling toward her, said they had found in the house certain stores of arsenic.
It is submitted for the serious consideration of counsel that the circumstances under which these two women produced these stores of arsenic are so suspicious as to justify the suggestion that that arsenic was not there before his death, and that Mrs. Maybrick never did have any access to it[270] or knowledge of it at all. There was no evidence as to where or by whom this arsenic was obtained, nor was there any evidence that the police had made any effort to discover where, when, or by whom that arsenic was procured.
[Note.—How and when this arsenic may have been procured by Mr. Maybrick himself will appear further on as a part of the new evidence.]
The places in which arsenic was found were open and accessible to every one in the house, and no person gave any evidence that he or she had ever seen it in the house before these two women found it after death.
As regards the black powder (arsenic mixed with charcoal) and the two solutions of arsenic produced by Mrs. Briggs and Alice Yapp, Mr. Davies, the analyst, gave evidence that, when analyzing the contents of the various bottles, he had searched diligently and microscopically for any traces, and could find no trace of charcoal having[271] been introduced into any of them. So this circumstantial evidence may be eliminated.
As regards white arsenic, also produced by these women, it must be observed that not only was it not shown that Mrs. Maybrick had purchased any, but it is submitted that the judge ought to have pointed out to the jury, as the fact is, that it would have been almost impossible for her or any woman to have obtained any white arsenic at all. No shopkeeper dare sell it to any one except to a medical man, and even then under the stringent restrictions of the Sale of Poison Act.
At the trial a wholesale druggist (Thompson, of Liverpool) gave evidence that James Maybrick constantly visited his cousin, who had been in his employment at his stores, where he could have obtained white arsenic from him without any difficulty; and it will be observed that it was found in his hatbox.
It is a remarkable thing in this connection that, while Edwin Maybrick called the[272] police in on Sunday night, and gave them the black solutions and white solutions which Mrs. Briggs had found on the Sunday morning, he did not give them the black powder which Alice Yapp had found on the-night before; and, in fact, that Michael Maybrick did not give it to the police until Tuesday, the 14th.
It is also a remarkable fact that, although these black solutions and that white solution of arsenic and that solid arsenic which Mrs. Briggs had found, were not handed by the police to the analyst until several days afterward, and were therefore not known to be arsenic by anybody, yet Mrs. Briggs was able to inform Mrs. Maybrick on Tuesday, the 14th, as was testified to, that these bottles contained arsenic.
It is submitted that Mrs. Briggs could not have known that without some other means of knowledge than looking at them.
The importance of this misdirection of the judge as to the question of possession of arsenic by Mrs. Maybrick can not be[273] overstated. It was conclusively shown that no decoction of fly-papers or of the black powder was the source of the arsenic with which certain articles found in the house and office were said to be infected, because the analyst said he had searched for the fibers of the papers and for the charcoal, and could not find any traces of either. If Mrs. Maybrick knew of the pure arsenic, why should she have bought the fly-papers, either for a cosmetic purpose or murder, and what should she have wanted with “poison for cats?”
Misdirection as to “Traces” of Arsenic
Out of the list submitted by the police, therefore, the only two things which could have been the source of the arsenic were the bottle of saturated solution, No. 10 in the Police List, and the bottle of solid arsenic, No. 11 in the Police List.
It may be observed that if all the arsenic or “traces” of the same, with which various[274] things were said to be infected, were collected together, it would not constitute a fatal dose, the smallest fatal dose recorded being two grains, and this in the case of a woman, and surely not in the case of a person addicted to large doses of arsenic.
At the inquest Mr. Davies defined what he meant by the word “trace.” He said:
“It means something under 1/100 part of a grain. It does not mean something which I could not weigh, but something which I could not guarantee to be absolutely free from other things; but anything under 1/100 part of a grain I should not consider satisfactory. If I said distinct traces, I should say it meant something between 1/100 and 1/1000 part of a grain, while a minute trace is less than 1/1000 part of a grain.”
In reference to Reinsch’s test which Mr. Davies used in these experiments, this passage occurs in Taylor’s “Medical Jurisprudence,” vol. i., p. 268: “The mere presence of a gray deposit on pure copper affords no absolute proof of the presence of arsenic.[275] Bismuth, antimony, and mercury all yield deposits with Reinsch’s test. The gray deposit of bismuth may easily be taken for arsenic.” And again: “The errors into which the faulty methods of applying Reinsch’s test lead have led its reliability to be much discredited, and, although in skilful hands the results are trustworthy, it would be perhaps unsafe to rely upon it in an important criminal investigation.”
It is submitted that the evidence relating to the articles which Mr. Davies said were infected with arsenic only to the extent of an unweighable trace could not and ought not to be regarded as proof that any arsenic at all was there, or as being anything more than a suspicion upon this analyst’s mind that what he saw was arsenic, and that it was a misdirection on the part of Mr. Justice Stephen to treat a mere expression of opinion of that kind as proof of the presence of arsenic.
Misdirection as to Arsenic in Solution
It will be observed that the only things of which James Maybrick could have partaken [but did not], in which arsenic in a weighable form was present, were the bottle of Valentine’s meat juice and the pot of glycerin, and that the arsenic found in them was found in a state of solution.
As regards the half grain of arsenic found in the meat juice, scientific evidence will be forthcoming that it is a physical impossibility for any person to dissolve half a grain of solid arsenic in 411 grains of Valentine’s meat juice, which is all the liquid that was in the bottle when it was handed to Mr. Davies.
Mr. Davies, moreover, found that (although he used very loose and unscientific language in his evidence) the specific gravity of the meat juice was considerably reduced, thereby showing that the half grain of arsenic found in it had been introduced in the form of arsenic in solution.
It will now be observed that the only arsenic in solution which was available, among the stores of arsenic found in the house, was the bottle No. 10 in the police list, and it is submitted that bottle No. 11 (solid arsenic) must, like the black solutions, be eliminated from any store of arsenic which Mrs. Maybrick, whether she had access to it or not, could have employed for the purpose of infecting any of the things found in the house to be infected.
Mr. Davies described the bottle No. 10 as a saturated solution of white arsenic, and he stated that it had been dissolved with water, some of the crystals remaining at the bottom undissolved.
At the inquest he stated, in reply to a question by the coroner: “The bottle No. 10, which was also in the box, contained a saturated solution of arsenic and solid arsenic at the bottom. There was no label on it. It contained, solid and liquid, perhaps two grains—a grain at all events.”
So it is evident that there was not a fatal[278] dose even in the stores which Mrs. Maybrick could have used had she had access to it.
As regards this bottle, Mr. Justice Stephen told the jury: “A saturated solution is a solution which has taken up as much arsenic as it can, the water becoming saturated with arsenic; the remainder of the arsenic is found at the bottom. In this case there was a saturated solution of arsenic in the water and a small portion of arsenic at the bottom. With regard to that these questions arise: What was it for? Who is wanting such a quantity of strong solution of arsenic? Who has put it there and how is it to be used? These are the questions, in the solution of which I can not help you. There is nothing definite about it to connect Mr. Maybrick with it certainly.[7] If he was in the habit of arsenic eating he would not keep it saturated in[279] water in quantities he could not possibly use.”
Mr. Davies found that this bottle “contained in solid and liquid perhaps two grains—a grain at all events.” Now arsenic can be dissolved in water by two processes. In cold water by shaking it constantly for several hours (and the strongest solution that can be obtained by the cold-water process is a one-per-cent. solution, which is no stronger than the ordinary Fowler’s solution as sold in the shops). That is called a “saturated solution” by the cold-water process. A solution of three or even four per cent. can be obtained with boiling water, but only when the water is kept on the constant boil for several hours; and that is also called a “saturated solution,” so that the phrase “saturated solution” may mean either a weak solution of one per cent., such as is gained by the cold-water process, or a stronger solution of three per cent. by the boiling-water process, and Mr. Justice Stephen[280] misdirected the jury as to the meaning of the phrase “saturated solution.” He should have told them that a “saturated solution” of arsenic is one which has by any particular process taken up as much arsenic and retained it in solution as is possible by that particular process, and that it might consequently be either a weak or a stronger solution, according as it has been dissolved by the cold-water or boiling-water process, by shaking for hours or boiling for hours.
The questions put to the jury by Mr. Justice Stephen upon the interpretation of the phrase “saturated solution” which he gave, namely, “How is it to be used?” “Who is wanting such a quantity of strong solution of arsenic?” are misdirections.
Mr. Clayton’s Experiments
Counsel are referred to experiments made with solutions of arsenic by Mr. E. Godwin Clayton, of the firm of Hassall &[281] Clayton. From these it will be seen that by the experiment there marked B, where the arsenic was shaken at intervals of twenty minutes for six hours, the result shows that it would require 186? grains of water to carry half a grain of arsenic. And that by experiment C, which is the strongest possible solution by the cold-water process, namely, one-per-cent. strength (equal to Fowler’s solution), it would require 50 grains of water to carry half a grain, but to obtain this the arsenic has to be shaken with cold water at frequent intervals for four days.
Mr. Godwin Clayton, in his report as to these experiments, remarks: “I think, however, that as few people outside a chemical laboratory would have the patience or opportunity to make a solution by shaking it at short intervals during four days, the solution obtained in experiment B—namely, an arsenical strength of 0.268 per cent.—might be described in a popular[282] sense, though not with strict scientific accuracy, as ‘saturated solution of arsenic.’” But then if that be so, that is only about a quarter of the strength of Fowler’s solution! The evidence of Mr. Davies as to the specific gravity of the meat juice being considerably reduced ought, it is submitted, not to have been received as scientific evidence, and it was a misdirection to treat it as such, because without the slightest difficulty, as will be seen by a reference to Mr. Godwin Clayton’s experiments, Mr. Davies’s evidence ought to have been scientifically exact, because he could have shown that (for example) if a solution of the strength of experiment B had been used, the 411 grains of liquid would have contained 186? of solution of arsenic and 244? grains of meat juice; and, further, that the specific gravity of the meat juice would, in that case, have been lowered from 1.2143 to 1.1263; and it was, therefore, not only possible, but the duty of Mr. Davies, as an expert, to have shown, by[283] comparing the specific gravity of the bottle No. 10 and the specific gravity of Valentine’s meat juice, that the “arsenic in solution” which had been introduced into it had been introduced into it out of that particular bottle, No. 10.
Then, again, it will be seen from these experiments of Mr. Godwin Clayton that if the solution in bottle No. 10 had been a strong hot-water solution of three per cent., the specific gravity would not have been considerably reduced, because the meat juice would in that case have contained only 15? grains of arsenical solution. To have obtained such a solution, the “arsenic powder” must have been boiled with distilled water for four hours; and it is submitted that it would have been impossible, in the first place, for Mrs. Maybrick, or any person outside a laboratory, to have adopted such a process of dissolving arsenic without the knowledge of the servants or anybody else; and, further, that even if she could have done this, she could not have possibly[284] weighed out exactly half a grain of it, which is what Mr. Davies found; and it is suggested that the only way in which that half grain of arsenic could possibly have been measured into that bottle, must have been by introducing Fowler’s solution, and no Fowler’s solution was found in the house—and in no way was it suggested that Mrs. Maybrick had any access to any, though others in that house may have been able to procure such a medicinal dose of it.
Misdirection as to Arsenic in Glycerin
As regards the glycerin, Inspector Baxendale said he found this bottle in the lavatory on the 18th of May. There was no evidence that this bottle had ever been in Mrs. Maybrick’s hands, and there was no evidence that any part of it had been used by James Maybrick. There was evidence that it was a freshly opened bottle. Scientific evidence will be forthcoming that it is[285] an absolute impossibility for any person to distribute arsenic evenly through a pound of glycerin.
It is suggested that there is no possible means by which that glycerin could have been administered with a felonious intent to James Maybrick; the mere moistening the lips with small quantities of it could not have operated in that way.
Scientific evidence will be forthcoming that glycerin, when kept in glass bottles, generally does contain arsenic, which it extracts from the glass of the bottle.
In 1888 Jahns drew attention to arsenic being present in glycerin—Chemische Zeitung.
In 1889 Vulpius also drew attention to it—Apotheker Zeitung.
Siebold (see Pharmaceutical Journal, 5th October, 1889) said, at the Pharmaceutical Conference, on the 11th September, 1889, that his experiments were made with toilet and pharmaceutical glycerin, and that the majority showed presence of arsenious[286] acid, varying from 1 grain in 4,000 to 1 grain in 5,000.
It may be pointed out that this is a larger quantity than Mr. Davies found, which was only “about 1/10 of a grain in 1,000 grains.”
The evidence relating to the administration of glycerin was that of Nurse Gore and Nurse Callery, and was to the effect that on Thursday night they refreshed James Maybrick’s mouth with glycerin and borax mixed in a saucer that was on the table in the sick-room, and that Mrs. Maybrick had brought the glycerin that was used either from the medicine cupboard in her room or from the washstand drawer.
The attention of counsel is called to the fact that this saucer of mixed glycerin and borax which was actually used was not produced at the trial, but Justice Stephen, when summing up to the jury, said: “Then you get the blue bottle which contained Price’s glycerin. Here is the bottle, which there is no evidence to show that[287] Mrs. Maybrick had even seen or touched; a considerable portion is still left. That glycerin was found in the lavatory outside, and if the bottle were filled and the same proportion of arsenic added, there would be two-thirds of a grain of arsenic in it. You have heard already that his mouth was moistened with glycerin and borax apparently the night before he died. If that be so, and the glycerin be really poison, it is certainly a very shocking result to arrive at.” Sir Charles Russell: “I think the evidence of Nurse Gore is that the bottle that was used the night before was taken, not from the lavatory, but from the cupboard of the washstand.” His Lordship: “It does not follow that that was the same bottle. One does not know the history of that bottle or where it went to. It may or may not have been the glycerin which was used for the purpose I have mentioned, namely, for moistening the lips. But it does appear in the case that a bottle was found in the lavatory, and that it contained[288] a grain of arsenic, and that his mouth was moistened with glycerin and borax during the night in question; but the identity between that bottle and the bottle which contained the glycerin is not established and not proved.”
It is submitted that the above was an unfair and inflammatory suggestion, and amounts to a gross MISDIRECTION, especially after all the evidence about the condition of deceased’s tongue and his complaining of a sensation as of a hair in his throat.
This concludes the whole of the evidence to any articles containing arsenic which were found in the house, in which the arsenic was present in anything except as unweighable “traces.”
Misdirection as to Evidence of Physicians
Justice Stephen further summed up: “The witness (Dr. Stevenson) stated: ‘I should say more arsenic was administered[289] on the 3d of May.’” It will be seen, by a reference to Dr. Stevenson’s evidence, that Dr. Stevenson did not say this.
Copyright, 1904, by Pach Bros., New York.
HON. JOHN HAY,
American Secretary of State, 1898—
Dr. Humphreys was the only medical man in attendance at that time. The only symptoms on Friday, the 3d, were that he had “vomited twice.” At the inquest Dr. Humphreys said as to this:
Q. “Did he say anything about his lunch on the previous day, Thursday, the 2d?”
A. “Yes; he said some inferior sherry had been put into it, and that it had made him as bad as ever again.”
And that also appears in Dr. Stevenson’s evidence at the trial:
“He told the doctor he had not been well since the previous day, when I learn he had his lunch at the office.”
It can not be suggested that the fact that the man vomited twice on Friday night was attributable to any arsenic taken at midday on Thursday, for Dr. Stevenson testified that the vomiting, which is a[290] symptom of arsenic, usually follows the administration in about half an hour.
Dr. Carter, who was not called in to the patient until Tuesday, May 7th, in his evidence, however, suggested that:
“I judge that the fatal dose must have been given on Friday, the 3d, but a dose might have been given after that. When he was so violently ill on the Friday, I thought it would be from the effects of the fatal dose, but there might have been subsequent doses”; and in cross-examination he explained that he had made this suggestion about the fatal dose because: “I was told he was unable to retain anything on his stomach for several days.”
It is submitted that the judge, when summing up, MISDIRECTED the jury by ignoring entirely the evidence and substituting for it this reckless suggestion of Dr. Carter’s.
Misdirection as to Times When Arsenic May Have Been Administered
The only occasions on which it was possible to suggest any act of administration of arsenic were the medicine on the 27th of April and the food at the office on May 1st and May 2d; and the judge told the jury:
“The argument that the prisoner administered the arsenic is an argument depending upon the combination of a great variety of circumstances of suspicion. The theory is that there was poisoning by successive doses, and it is rather suggested that there may have been several doses. But I do not know that there was any effort made to point out the precise times at which doses may have been administered.”
Under such circumstances it is submitted that the statement of the judge as to the medicine on the 27th of April, and as to the food at office, and as to the statement that “Friday (3d May) was the day[292] on which began the symptoms of what may be called the fatal dose,” are misdirections of vital importance to this case, and such as to entitle Mrs. Maybrick to have the verdict set aside and have a new trial ordered.
Misdirection as to Mrs. Maybrick’s Changing Medicine Bottles
As regards the question of attempts to administer arsenic, the occasions upon which such conduct was imputed are changing medicine from one bottle into another and the Valentine’s meat juice. As regards the changing the bottle, there were two occasions when evidence was given as to Mrs. Maybrick’s doing this. The first was on the 7th of May, when Alice Yapp said that some of the medicines were kept on a table near the bedroom door and some in the bedroom, and that on Tuesday, 7th of May, she saw Mrs. Maybrick on the landing near the bedroom door, and what was she doing? She was[293] apparently pouring something out of one bottle into another. They were medicine bottles.
That is the whole evidence as to the incident, and as all the bottles in the house were analyzed, and none found to contain even a trace of arsenic except the Clay and Abraham’s bottle—which James Maybrick was not taking at that time—the judge could not properly direct the jury to regard it as a matter of suspicion; but he did do so. He referred to this incident thus:
“On the 28th April (the day after the Wirrall Races) Mrs. Maybrick sent for Dr. Humphreys, and afterward she was seen pouring medicine from one bottle into another.”
It is submitted that this was a serious misdirection.
The other occasion was on Friday, the 10th of May, when Michael Maybrick, seeing Mrs. Maybrick changing a medicine from one bottle to another in the bedroom, took the bottles away and had the prescription[294] made up again, saying: “Florrie, how dare you tamper with the medicine?” Mrs. Maybrick explained that she was only putting the medicine into a larger bottle because there was so much sediment. Nurse Callery was present and there was no concealment about what she was doing, and the bullying conduct of Michael was absolutely without any sort of justification. These bottles were analyzed and found to be harmless.
Mr. Justice Stephen turned this incident, which occurred on the afternoon before death, and after she had been prevented from attending on her husband, against Mrs. Maybrick, thus—quoting Michael’s evidence: “In the bedroom I found Mrs. Maybrick pouring from one bottle into another and changing the labels, and I said, ‘Florrie, how dare you tamper with the medicine?’” And Justice Stephen continued: “Verily, this was a strange—I don’t say strange considering the circumstances—but dreadfully unwelcome remark to[295] make to a lady in her own house, when she was in attendance on her husband, and something which showed the state of feeling in his mind, and must have attracted her attention.” It is submitted that this was a misdirection.
Misdirection as to Administration With Intent to Kill
There was also an attempt by the prosecution to suggest an attempt to administer medicine, arising out of an occasion when James Maybrick said to her, “You have given me the wrong medicine again,” from which it appears that on the Friday, the day before death, Mrs. Maybrick was not giving him anything at all, but was trying to get him to take some medicine from Nurse Callery, who was endeavoring to induce him to take it. This was one of the medicines ordered by Dr. Humphreys, and was found free from arsenic. The [296]judge did not refer to this in his summing-up,
but reference to it is introduced here
because it exhausts the whole evidence, with the exception of the Valentine’s meat juice incident, as to any suggestions or even of any occasions of attempt to administer, while Mr. Matthews advised the Queen that “the evidence leads clearly to the conclusion that the prisoner administered and attempted to administer arsenic to her husband with intent to murder,” which formed his ground for consigning this woman to penal servitude for life. No evidence, either of any act of administration or of any act of attempt to administer either with or without felonious attempt, was given at the trial, which possibly could have led any person to any such conclusion, with the single exception of the Valentine’s meat juice; and as none of that was administered after it had been in Mrs. Maybrick’s hands, the utmost that could be said of it (assuming that she did put any arsenic into it) is that it was an attempt to administer, either feloniously or otherwise.[297] It is submitted that the judge misdirected the jury as to this incident, in that he did not tell them that the mere evidence of an attempt to administer arsenic was not sufficient—that they must be satisfied that the attempt to administer was with a mens rea and with an intent to murder.
Exclusion of Prisoner’s Testimony
Mrs. Maybrick voluntarily told her solicitors, Mr. Arnold and Mr. Richard Cleaver, directly she was arrested and even before the inquest, that she had, at her husband’s urgent request, put a powder into a bottle of Valentine’s meat juice, but that she did not know, until Mrs. Briggs informed her that arsenic had been found in a bottle of meat juice, that the powder she had put in was assumably arsenic. [At the trial both Mr. Richard and Mr. Arnold Cleaver, her solicitors, offered to give evidence to this effect, but Justice Stephen refused to admit it.] She also tried to tell[298] Mrs. Briggs the same thing, but the policeman stopped the conversation; and she also told it to her mother on her arrival. Mrs. Maybrick made no attempt at concealment about having put this powder in, although no one had seen her do it, and her solicitors, instead of relying as a line of defense on showing there was no “mens rea” in what she had done, kept back her account of what she had done. At the trial, however, after all the evidence for the prosecution had been concluded without a single witness speaking of her having put anything into anything, she insisted on telling the jury, as she had told her solicitors, that she did put a powder into a bottle of meat juice, in accordance with an urgent request of her husband’s, but that she did not know it was arsenic. If she did not know, there was no “mens rea.” Upon that evidence, and upon certain suspicious circumstances connected with her conduct in taking the meat juice into the dressing-room and replacing it in the bedroom, the[299] judge, as it is submitted, misdirected the jury in the following passage:
“Mr. Michael Maybrick says: ‘Nothing was given to my brother out of that.’ That is to say, nothing was given to him out of the bottle of Valentine’s meat juice, which undoubtedly had arsenic in it. Its presence was detected, but of that bottle which was poisoned he certainly had none. He had a small taste of it before it was poisoned, given him by Nurse Gore.”
It is submitted that the words “before it was poisoned” is a gross misdirection.
Misdirection as to Identity of Meat-Juice Bottle
It may be convenient here to interpose the following remarks on the subject of the identity of the bottle. Counsel will observe that the judge referred to the evidence at the inquest and at the magisterial inquiry, which, it is suggested, enables a reference to any discrepancies in the evidence[300] of the witnesses on the three occasions—inquest, magisterial inquiry, and trial.
The identity of the half-used bottle, which was found to contain “half a grain of arsenic in solution,” with the bottle which Mrs. Maybrick took into the dressing-room, was not proved. It was assumed alike by the prosecution and the defense, and by Mrs. Maybrick herself, but it was not proved. It was proved that there was another half-used bottle, of which James Maybrick had partaken on Monday, 6th of May, when Dr. Humphreys said:
“Some of the Valentine’s meat juice had been taken, but it did not agree with the deceased and made him vomit. Witness did not remember him vomiting in his presence, but he complained of it. Witness told deceased to stop the Valentine’s meat juice, and said he was not surprised at it making Mr. Maybrick sick, as it made many people sick.”
There was, therefore, another half-used[301] bottle. The attention of counsel is strongly directed to the question of the identity of this half-used bottle.
Besides the one in which the arsenic was detected, there was another half-used bottle produced at the trial, which was found by Mrs. Briggs after death in one of James Maybrick’s hatboxes in the dressing-room, together with the black solutions and white solutions of arsenic, and this bottle was found free of arsenic.
As to the bottle which Mrs. Maybrick had in her hands on the night of the 9th-10th of May, and which she took into the dressing-room, and as to which she volunteered the statement that she had put a powder in, as to which evidence was given by Nurse Gore, was thus voluntarily corroborated by Mrs. Maybrick in her statement to the jury. From this it appears that Nurse Gore, on her arrival for duty on Thursday night, opened a fresh bottle of meat juice, which had been given to her the night before by Edwin Maybrick, and[302] gave the patient one or two spoonfuls, and then placed it on the table, from which she shortly afterward saw Mrs. Maybrick remove it and take it into the dressing-room, the door of which was not shut, and then return with it into the bedroom and replace it on the table. Nurse Gore thought she did this in a stealthy way. It must be remembered that Nurse Gore was naturally suspicious, as is shown by the fact that on two previous occasions she suggested suspicions with regard to changes in medicines by Mrs. Maybrick, which on analysis were proved to be free from arsenic. When the patient, a short time afterward, awoke, Mrs. Maybrick came into the bedroom again and removed the bottle from the table and placed it on the washstand, where there were only the ordinary jugs and basins, and there left it. Nurse Gore’s usual suspicions were aroused and she gave the patient none of it, nor did Mrs. Maybrick ask her to give him any. When Nurse Gore was relieved by Nurse Callery the[303] next morning (Friday, the 10th), at 11 o’clock, she called her attention to it and asked her to take a sample of it, which Callery did, and put it into an ordinary medicine bottle, which Nurse Gore gave her for the purpose. Nurse Gore left the bottle on the washstand where Mrs. Maybrick had placed it. Nurse Gore did not mention the circumstance to Dr. Humphreys when he came to see the patient at 8:30 A.M., nor to Michael Maybrick, whose attention she directed to a bottle of brandy instead, which on analysis was found harmless; and she then went into Liverpool and saw the matron, and on her return to the house at 2 o’clock told Callery to throw away the sample in accordance with the matron’s orders, which Callery did. The bottle in which that sample was taken was not specially identified, though it must have remained on the premises. It ought to have been produced, because, if arsenic was detected in the sample, the bottle of Valentine’s meat juice would have been[304] identified by that means, and it would have been shown that the arsenic was in the meat juice which Mrs. Maybrick had taken into the dressing-room. On the other hand, as all the bottles which were in the house were analyzed and found free of arsenic, there is negative evidence that there was no arsenic in the sample taken.
Misdirection in Excluding Corroboration of Prisoner’s Statement
Now the serious, most serious, consideration of counsel is asked for in comparing the evidence of these three witnesses—Gore, Callery, and Michael Maybrick—as given at the coroner’s inquest, as it appears in the coroner’s depositions, at the magisterial inquiry, as it appears in the magistrates’ depositions, and as given at the trial. It will be seen that there are great discrepancies as to the place in the room from which Michael Maybrick took the half-used bottle in which Mr. Davies, the analyst,[305] subsequently detected one-tenth of a grain of arsenic in solution. It is suggested that Mr. Michael’s evidence at the inquest is the true account of where he got the bottle, and that his evidence at the trial is cooked, to suit the evidence of Gore, and that the identity of the bottle is not established. The statement, which in her statement to the jury Mrs. Maybrick said she was prevented by the policeman from making to Mrs. Briggs, the moment that person told her about arsenic being found in the meat juice, was communicated by Mrs. Maybrick at once to her solicitors, Mr. Arnold and Richard Cleaver; and it is submitted that it was a misdirection of the judge to exclude their evidence in corroboration of such a material and important fact in her favor, and a misdirection in refusing to allow corroboration in that way of what was in evidence, and did corroborate it—thereby constituting a matter which the jury should have had before them, as having a bearing on her statement.
Misdirections to Jury to Draw Illegal Inferences
The judge referred to the Valentine’s meat-juice incident, the most vital point in the trial, in the following extraordinary manner at the end of his summing-up:
“I may say this, however: supposing you find a man dying of arsenic, and it is proved that a person put arsenic in his plate, and if he gives an explanation which you do not consider satisfactory—that is a very strong question to be considered—how far it goes, what its logical value is, I am not prepared to say—I could not say, and unless I had to write my verdict I should not say how I should deal with the verdict; but being no juryman, but only a judge, I can only say this, it is a matter for your serious consideration.”
It is submitted that this was a gross misdirection and a cruel taunt to drive the jury into finding a verdict against the prisoner[307] upon that ground, and it is submitted that so monstrously unfair an utterance can not be found in the reports of any summing-up by any judge in any criminal case. See also another misdirection where the judge read the examination of Nurse Gore and omitted reference to the sample, but said of the bottle, “In point of fact, it remained where it was until taken away by Mr. Michael Maybrick,” when it is in evidence that Nurse Callery had taken a sample of it during the eighteen hours it remained on the washstand, and that others beside Mrs. Maybrick had access to it.
It is submitted that, apart from the question of the identity of the bottle, there was no evidence, except Mrs. Maybrick’s statement, that she had put anything into the bottle, which justified Mr. Justice Stephen in using the words, “He had a small taste of it before it was poisoned,” inasmuch as, except Mrs. Maybrick’s own voluntary statement that she had put a powder into a bottle of meat juice, there was nothing to[308] show that the arsenic, detected by Mr. Davies in the bottle he analyzed, had not been in the bottle when Edwin Maybrick gave it to Nurse Gore and which she opened when she gave the patient “one or two spoonfuls.”
Another misdirection in reference to the meat-juice incident will be found in the summing-up in the words:
“It has a sort of very remote bearing upon the statement which she made on Monday.”
Instead of “a sort of very remote bearing,” it was a matter of the greatest importance that it should be shown that at the very instant she heard that arsenic had been found in some meat juice, before even the inquest, and before any arsenic had been found in the body, she should have attempted to tell Mrs. Briggs that she had put a powder into some meat juice, but did not know what it was; and, in connection with this, the attention of counsel is called to the fact that Mr. Justice[309] Stephen refused to allow evidence showing that she had made this statement from the very first.
Misdirections Regarding the Medical Testimony
As to the cause of James Maybrick’s death, there was a most remarkable conflict of medical opinion. It was not until the post-mortem examination, held on Monday, the 13th of May, by Drs. Carter and Humphreys (the medical men who had attended the deceased during his illness), and Dr. Barron, that the cause of death was ascertained, and it was then found to be exhaustion, caused by gastro-enteritis or acute inflammation of the stomach and intestines, which, in their opinion, had been set up by an irritant poison, but might have been set up by his getting wet through.
These doctors agreed that by the phrase “irritant poison” they meant any unwholesome food or drink.
Up to the time of death the doctors, Messrs. Humphreys and Carter, had supposed and treated the patient for dyspepsia, notwithstanding that suggestions had been made to them by Michael Maybrick that the patient was being poisoned; and they said in their evidence that but for the discovery of arsenic on the premises, they would have given a certificate of death from natural causes.
At the post-mortem examination they selected such portions of the body for analysis as they considered necessary, including, among other things, the stomach and its contents; and the analyst employed by the police (Mr. Davies) found no arsenic in the stomach or its contents, and was unable to discover any weighable traces of arsenic in any other portions of the body.
About three weeks afterward the body was, by order of the Home Secretary, exhumed, and fresh portions of it were taken for analysis, some of which were examined by Mr. Davies and other parts[311] by Dr. Stevenson, one of the Crown analysts.
In those portions taken at the exhumation, the total result of the search for arsenic in the body was that Mr. Davies actually found unweighable arsenic, 2/100 of a grain, in the liver, and Dr. Stevenson 76/1000 of a grain in the liver and 15/1000 in the intestines, making, when all added together, the total amount as found by Mr. Davies and Dr. Stevenson about one-tenth of a grain, made up of minute fractional portions of one-hundredths and one-thousandths.
It was shown in evidence that the smallest fatal dose of arsenic ever recorded was two grains, which was in the case of a woman, and who presumably was not an arsenic-eater.
It was shown in evidence that in the year 1888 Mrs. Maybrick had asked Dr. Hopper (who was at that time, and had been for many years, their regular medical attendant) to speak to Mr. Maybrick and prevent him taking certain medicines, which were[312] doing him harm; that early in March she made the same appeal to Dr. Humphreys, suggesting at the time that Mr. Maybrick was taking a white powder, which she thought was strychnin.
At the magisterial inquiry Dr. Humphreys stated that Mrs. Maybrick had, on the occasion of his being called in to the patient on the 28th of April, also spoken to him about her husband taking this white powder, and that in consequence of this he asked Mr. Maybrick about taking strychnin and nux vomica.
Counsel will find proof, in the evidence given at the trial by Dr. Hopper, Mr. Heaton, Nicholas Bateson, Esq., Capt. Richard Thompson, Thomas Stansell, and Sir James Poole, ex-Mayor of Liverpool, as to the arsenic habit of James Maybrick and his opportunities for obtaining the drug. [To which must now be added the statutory declaration of Valentine Charles Blake, son of the late Sir Valentine Blake, M.P., that he, about two months prior to Mr.[313] Maybrick’s death, had procured him 150 grains of arsenic.] It may be stated here that from the appearance of the little bottles in which the white arsenic was found, they had been in use for a long time and were such as would be found as sample bottles in the offices of business houses to which it is unlikely Mrs. Maybrick would have access.
It is submitted that the discovery of such a tiny quantity of arsenic in the body of a man addicted to such extraordinary habits might reasonably be accounted for by those habits.
Conflict of Medical Opinion
The conflict of medical opinion which was exhibited on this trial arose upon the point as to whether arsenic had been the cause of the gastro-enteritis, of which it was admitted that the man died.
There was no conflict of medical opinion on the facts that the quantity found in the[314] body was insufficient to cause death, nor that gastro-enteritis might be set up by a vast variety of things besides arsenic—in fact, by any impure food or b............