next morning the court was crowded, and numbers were unable to gain admission. the news that sal rawlins, who alone could prove the innocence of the prisoner, had been found, and would appear in court that morning, had spread like wildfire, and the acquittal of the prisoner was confidently expected by a large number of sympathising friends, who seemed to have sprung up on all sides, like mushrooms, in a single night. there were, of course, plenty of cautious people left who waited to hear the verdict of the jury before committing themselves, and who still believed him to be guilty. but the unexpected appearance of sal rawlins had turned the great tide of public feeling in favour of the prisoner, and many who had been loudest in their denunciations of fitzgerald, were now more than half convinced of his innocence. pious clergymen talked in an incoherent way about the finger of god and the innocent not suffering unjustly, which was a case of counting unhatched chickens, as the verdict had yet to be given.
felix rolleston awoke, and found himself famous in a small way. out of good-natured sympathy, and a spice of contrariness, he had declared his belief in brian’s innocence, and now, to his astonishment, he found that his view of the matter was likely to prove correct. he received so much praise on all sides for his presumed perspicuity, that he soon began to think that he had believed in fitzgerald’s innocence by a calm course of reasoning, and not because of a desire to differ from every one else in their opinion of the case. after all, felix rolleston is not the only man who has been astonished to find greatness thrust upon him, and come to believe himself worthy of it. he was a wise man, however, and while in the full tide of prosperity he seized the flying moment, and proposed to miss featherweight, who, after some hesitation, agreed to endow him with herself and her thousands. she decided that her future husband was a man of no common intellect, seeing that he had long ago arrived at a conclusion which the rest of melbourne were only beginning to discover now, so she determined that, as soon as she assumed marital authority, felix, like strephon in “iolanthe,” should go into parliament, and with her money and his brains she might some day be the wife of a premier. mr. rolleston had no idea of the political honours which his future spouse intended for him, and was seated in his old place in the court, talking about the case.
“knew he was innocent, don’t you know,” he said, with a complacent smile “fitzgerald’s too jolly good-looking a fellow, and all that sort of thing, to commit murder.”
whereupon a clergyman, happening to overhear the lively felix make this flippant remark, disagreed with it entirely, and preached a sermon to prove that good looks and crime were closely connected, and that both judas iscariot and nero were beauty-men.
“ah,” said calton, when he heard the sermon, “if this unique theory is a true one, what a truly pious man that clergyman must be!” this allusion to the looks of the reverend gentleman was rather unkind, for he was by no means bad-looking. but then calton was one of those witty men who would rather lose a friend than suppress an epigram.
when the prisoner was brought in, a murmur of sympathy ran through the crowded court, so ill and worn-out he looked; but calton was puzzled to account for the expression of his face, so different from that of a man whose life had been saved, or, rather, was about to be saved, for in truth it was a foregone conclusion.
“you know who stole those papers,” he thought, as he looked at fitzgerald, keenly, “and the man who did so is the murderer of whyte.”
the judge having entered, and the court being opened, calton rose to make his speech, and stated in a few words the line of defence he intended to take.
he would first call albert dendy, a watchmaker, to prove that on thursday night, at eight o’clock in the evening, he had called at the prisoner’s, lodgings while the landlady was out, and while there had put the kitchen clock right, and had regulated the same. he would also call felix rolleston, a friend of the prisoners, to prove that the prisoner was not in the habit of wearing rings, and frequently expressed his detestation of such a custom. sebastian brown, a waiter at the melbourne club, would be called to prove that on thursday night a letter was delivered to the prisoner at the club by one sarah rawlins, and that the prisoner left the club shortly before one o’clock on friday morning. he would also call sarah rawlins, to prove that she had delivered a note to sebastian brown for the prisoner, at the melbourne club, at a quarter to twelve on thursday night, and that at a few minutes past one o’clock on friday morning she had conducted the prisoner to a slum off little bourke street, and that he was there between one and two on friday morning, the hour at which the murder was alleged to have taken place. this being his defence to the charge brought against the prisoner, he would call albert dendy.
albert dendy, duly sworn, stated —
i am a watchmaker, and carry on business in fitzroy. i remember thursday, the 26th of july last. on the evening of that day i called at powlett streel east melbourne, to see my aunt, who is the landlady of the prisoner. she was out at the time i called, and i waited in the kitchen till her return. i looked at the kitchen clock to see if it was too late to wait, and then at my watch i found that the clock was ten minutes fast, upon which i put it right, and regulated it properly.
calton: at what time did you put it right?
witness: about eight o’clock.
calton: between that time and two in the morning, was it possible for the clock to gain ten minutes?
witness: no, it was not possible.
calton: would it gain at all?
witness: not between eight and two o’clock — the time was not long enough.
calton: did you see your aunt that night?
witness: yes, i waited till she came in.
calton: and did you tell her you had put the clock right?
witness: no, i did not; i forgot all about it.
calton: then she was still under the impression that it was ten minutes fast?
witness: yes, i suppose so.
after dendy had been cross-examined, felix rolleston was called, and deposed as follows:—
i am an intimate friend of the prisoner. i have known him for five or six years, and i never saw him wearing a ring during that time. he has frequently told me he did not care for rings, and would never wear them.
in cross-examination:—
crown prosecutor: you have never seen the prisoner wearing a diamond ring?
witness: no, never.
crown prosecutor: have you ever seen any such ring in his possession?
witness: no, i have seen him buying rings for ladies, but i never saw him with any ring such as a gentleman would wear.
crown prosecutor: not even a seal ring.
witness: no, not even a seal ring.
sarah rawlins was then placed in the witness-box, and, after having been sworn, deposed —
i know the prisoner. i delivered a letter, addressed to him at the melbourne club, at a quarter to twelve o’clock on thursday, 26th july. i did not know what his name was. he met me shortly after one, at the corner of russell and bourke streets, where i had been told to wait for him. i took him to my grandmother’s place, in a lane off little bourke street. there was a dying woman there, who had sent for him. he went in and saw her for about twenty minutes, and then i took him back to the corner of bourke and russell streets. i heard the three-quarters strike shortly after i left him.
crown prosecutor: you are quite certain that the prisoner was the man you met on that night?
witness: quite certin’, s’elp me g—.
crown prosecutor: and he met you a few minutes past one o’clock?
witness: yes, ’bout five minutes — i ’eard the clock a-strikin’ one just afore he came down the street, and when i leaves ’im agin, it were about twenty-five to two, ’cause it took me ten minits to git ’ome, and i ’eard the clock go three-quarters, jest as i gits to the door.
crown prosecutor: how do you know it was exactly twenty-five to two when you left him?
witness: ‘cause i sawr the clocks — i left ’im at the, corner of russell street, and comes down bourke street, so i could see the post orffice clock as plain as day, an’ when i gets into swanston street, i looks at the town ‘all premiscus like, and sees the same time there.
crown prosecutor: and you never lost sight of the prisoner the whole time?
witness: no, there was only one door by the room, an’ i was a-sittin’ outside it, an’ when he comes out he falls over me.
crown prosecutor: were you asleep?
witness: not a blessed wink.
calton then directed sebastian brown to be called. he deposed —
i know the prisoner. he is a member of the melbourne club, at which i am a waiter. i remember thursday, 26th july. on that night the last witness came with a letter to the prisoner. it was about a quarter to twelve. she just gave it to me, and went away. i delivered it to mr. fitzgerald. he left the club at about ten minutes to one.
this closed the evidence for the defence, and after the crown prosecutor had made his speech, in which he pointed out the strong evidence against the prisoner, calton arose to address the jury. he was a fine speaker, and made a splendid defence. not a single point escaped him, and that brilliant piece of oratory is still remembered and spoken of admiringly in the purlieus of temple court and chancery lane.
he began by giving a vivid description of the circumstances, of the murder — of the meeting of the murderer and his victim in collins street east — the cab driving down to st. kilda — the getting out of the cab of the murderer after committing the crime — and the way in which he had secured himself against pursuit.
having thus enchained the attention of the jury by the graphic manner in which he described the crime, he pointed out that the evidence brought forward by the prosecution was purely circumstantial, and that they had utterly failed to identify the prisoner in the dock with the man who entered the cab. the supposition that the prisoner and the man in the light coat were one and the same person, rested solely upon the evidence of the cabman, royston, who, although not intoxicated, was — judging from his own statements, not in a fit state to distinguish between the man who hailed the cab, and the man who got in. the crime was committed by means of chloroform; therefore, if the prisoner was guilty, he must have purchased the chloroform in some shop, or obtained it from some friends. at all events, the prosecution had not brought forward a single piece of evidence to show how, and where the chloroform had been obtained. with regard to the glove belonging to the murdered man found in the prisoner’s pocket, he picked it up off the ground at the time when he first met whyte, when the deceased was lying drunk near the scotch church. certainly there was no evidence to show that the prisoner had picked it up before the deceased entered the cab; but, on the other hand, there was no evidence to show that it had been picked up in the cab. it was far more likely that the glove, and especially a white glove, would be picked up under the light of the lamp near the scotch church, where it was easily noticeable, than in the darkness of a cab, where there was very little room, and where it would be quite dark, as the blinds were drawn down. the cabman, royston, swore positively that the man who got out of his cab on the st. kilda road wore a diamond ring on the forefinger of his right hand, and the cabman, rankin, swore to the same thing about the man who got out at powlett street. against this could be placed the evidence of one of the prisoner’s most intimate friends — one who had seen him almost daily for the last five years, and he had sworn positively that the prisoner was not in the habit of wearing rings.
the cabman rankin had also sworn that the man who entered his cab on the st. kilda road alighted at powlett street, east melbourne, at two o’clock on friday morning, as he heard that hour strike from the post office clock, whereas the evidence of the prisoner’s landlady showed plainly that he entered the house five minutes previously, and her evidence was further supported by that of the watchmaker, dendy. mrs. sampson saw the hand of her kitchen clock point to five minutes to two, and, thinking it was ten minutes slow, told the detective that the prisoner did not enter the house till five minutes past two, which would just give the man who alighted from the cab (presuming him to have been the prisoner) sufficient time to walk up to his lodgings. the evidence of the watchmaker, dendy, however, showed clearly that he had put the clock right at the hour of eight on thursday night; that it was impossible for it to gain ten minutes before two on friday morning, and therefore, the time, five minutes to two, seen by the landlady was the correct one, and the prisoner was in the house five minutes before the other man alighted from the cab in powlett street.
these points in themselves were sufficient to show that the prisoner was innocent, but the evidence of the woman pawlins must prove conclusively to the jury that the prisoner was not the man who committed the crime. the witness brown had proved that the woman rawlins had delivered a letter to him, which he gave to the prisoner and that the prisoner left the club, to keep the appointment spoken of in the letter, which letter, or, rather, the remains of it had been put in evidence. the woman rawlins swore that the prisoner met her at the corner of russell and bourke streets, and had gone with her to one of the back slums, there to see the writer of the letter. she also proved that at the time of the committal of the crime the prisoner was still in the back slum, by the bed of the dying woman, and, there being only one door to the room, he could not possibly have left without the witness seeing him. the woman rawlins further proved that she left the prisoner at the corner of bourke and russell streets at twenty-five minutes to two o’clock, which was five minutes before royston drove his cab up to the st. kilda police station, with the dead body inside. finally, the woman rawlins proved her words by stating that she saw both the post office and town hall clocks; and supposing the prisoner started from the corner of bourke and russell streets, as she says he did, he would reach east melbourne in twenty minutes, which made it five minutes to two on friday morning, the time at which, according to the landlady’s statement, he entered the house.
all the evidence given by the different witnesses agreed completely, and formed a chain which showed the whole of the prisoner’s movements at the time of the committal of the murder. therefore, it was absolutely impossible that the murder could have been committed by the man in the dock. the strongest piece of evidence brought forward by the prosecution was that of the witness hableton, who swore that the prisoner used threats against the life of the deceased. but the language used was merely the outcome of a passionate irish nature, and was not sufficient to prove the crime to have been committed by the prisoner. the defence which the prisoner set up was that of an alibi, and the evidence of the witnesses for the defence proved conclusively that the prisoner could not, and did not, commit the murder. finally, calton wound up his, elaborate and exhaustive speech, which lasted for over two hours, by a brilliant peroration, calling upon the jury to base their verdict upon the plain facts of the case, and if they did so they could hardly fail in bringing in a verdict of “not guilty.”
when calton sat down a subdued murmur of applause was heard, which was instantly suppressed, and the judge began to sum up, strongly in favour of fitzgerald. the jury then retired, and immediately there was a dead silence in the crowded court — an unnatural silence, such as must have fallen on the blood-loving roman populace when they saw the christian martyrs kneeling on the hot yellow sands of the arena, and watched the long, lithe forms of lion and panther creeping steadily towards their prey. the hour being late the gas had been lighted, and there was a sickly glare through the wide hall.
fitzgerald had been taken out of court on the retiring of the jury, but the spectators stared steadily at the empty dock, which seemed to enchain them by some indescribable fascination. they conversed among themselves only in whispers, until even the whispering ceased, and nothing could be heard but the steady ticking of the clock, and now and then the quick-drawn breath of some timid on-looker. suddenly, a woman, whose nerves were over-strung, shrieked, and the cry rang weirdly through the crowded hall. she was taken out, and again there was silence, every eye being now fixed on the door through which the jury would re-issue with their verdict of life or death. the hands of the clock moved slowly round — a quarter — a half — three quarters — and then the hour sounded with a silvery ring which startled everyone. madge, sitting with her hands tightly clasped together, began to fear that her highly-strung nerves would give way.
“my god,” she muttered softly to herself; “will this suspense never end?”
just then the door opened, and the jury re-entered. the prisoner was again placed in the dock, and the judge resumed his seat, this time with the black cap in his pocket, as everyone guessed.
the usual formalities were gone through, and when the foreman of the jury stood up every neck was craned forward, and every ear was on the alert to catch the words that fell from his lips. the prisoner flushed a little and then grew pale as death, giving a quick, nervous glance at the quiet figure in black, of which he could just catch a glimpse. then came the verdict, sharp and decisive, “not guilty.”
on hearing this a cheer went up from everyone in the court, so strong was the sympathy with brian.
in vain the crier of the court yelled, “order!” until he was red in the face. in vain the judge threatened to commit all present for contempt of court — his voice being inaudible, it did not matter much — the enthusiasm could not be restrained, and it was five minutes before order was obtained. the judge, having recovered his composure, delivered his judgment, and discharged the prisoner, in accordance with the verdict.
calton had won many cases, but it is questionable if he had ever heard a verdict which gave him so much satisfaction as that which proclaimed fitzgerald innocent.
and brian, stepping down from the dock a free man, passed through a crowd of congratulating friends to a small room off the court, where a woman was waiting for him — a woman who clung round his neck, and sobbed out —
“my darling! my darling! i knew that god would save you.”
