THE TRIAL. DAY 3.
The third day of the trial opened with the most damning physical evidence possible - the results of the chemical analysis of the portions of Catherine Jarvey's body sent to Melbourne.
TRIAL OF CAPTAIN JARVEY FOR POISONING HIS WIFE.
SUPREME COURT- CRIMINAL SITTING
Friday, March l7th.
(Before his Honor, Mr. Justice Chapman)
The following is the completion of the evidence given on this day:
John Macadam, examined by Mr Prendergast: I am a doctor of medicine and surgeon, and I am Analytical Chemist to the Government of Victoria, which office I have held for six or seven years. I am Lecturer on Chemistry and Practical Chemistry at the Melbourne University. I heard Constable Malony's evidence. On the 23rd January, I received from him two tin jars, the covers were soldered down, and there was some red tape passed over the cover, and incorporated with a seal. I produce the tape and seal. The seal handed to me is the one used on the tins. On opening the tins, I found two white jelly jars, covered with bladder skin and sealed on white tape. I have seen that seal on the table. Malony, at my suggestion, opened the tins and jars in my presence. The jars were labelled - one, "Stomach, with contents, removed from the body of Mrs Jarvey, December 31st, 1864. Test for strychine and hydr. bicolor." (which means corrosive sublimate) The other was labelled, "Portion of the liver, removed at the same time." In one jar, I found a human stomach tied at each end with white string; in the other, a portion of liver — but whether human or not I cannot say. The liver presented no peculiar appearance and the stomach showed apparently only very slight change from decomposition. The constable also delivered to me three written communications. The stomach contained about 4oz of a thickish fluid of a brown color, which was slightly acid to test-paper. It also contained portions of cooked potato and flour dough. The stomach had not been opened. A preliminary investigation with a small quantity — about 3oz — of the fluid was made, for the purpose of determining the presence of metallic poisons; an especial quantity, about 1/2oz, was used for the special examination for arsenic. A larger portion of the fluid — very nearly the half of the remainder, or nearly 1 1/4oz — was especially tested for strychnine; it was mixed with half of the stomach and half of the piece of liver, in a chopped condition. No metallic poison of any kind was found. This process instituted with the larger portion was that of Stas, on authority mentioned in the last addition of Taylor's "Medical Jurisprudence" (1861). The agents employed to separate the strychnine were rectified spirit or pure alcohol, and tartaric acid. The acid solution was then constantly treated in a water-bath tempered to 22 degrees, and a slight excess of potash added, or more than sufficient to neutralise the tartaric acid. The fluid was then shaken in a long, stoppered tube, with equal volumes of ether and chloroform. The ethereal solutions were then evaporated carefully in a water-bath, and the result tested. I shall state the tests applied. This residuum, like the contents of the stomach, had, from my own experience, a bitter taste — that most peculiar to strychnine. A small portion of the residuum was heated upon platinum foil — a remarkably thin sheet of platinum: the result was traces of blackening, or carbonisation. A portion of the residuum was dissolved in alcohol; and this alcoholic solution was allowed spontaneously to evaporate upon a microscopic slide. The slide was placed under a most powerful microscope, and examined by polarised light. The appearances were those of strychnine. Another portion of the residuum was treated with a few drops of sulphuric acid, and then a drop of a solution of bichromate of potash. A brilliant purplish blue or violet color was immediately developed. It is a color that begins as a purplish blue, passes to violet, and ultimately to a rose tint.
Dr Macadam continued at length and with precision to relate the various chemical tests made to, in his mind, find results which conclusively resembled the chemical found in tests upon animals that he had previously conducted.
A question put by Mr Prendergast led to a short discussion.
The Judge: If Dr Macadam had been examined on the first day, this trial might have been shortened by two days. We have been listening for two days to evidence having relation to what might have been -evidence like a great deal of what was given in Palmer's case, where no strychnine whatever was found. To the Witness: You heard the evidence of Miss Jarvey; are the symptoms she described, consistent or inconsistent with death by strychnine? — They are consistent with it.
Cross examined by Mr Smith: How long have you been Government Analyst in Victoria? — Six or seven years. What were you before that time? — I was lecturer on chemistry at the Scotch College, in Melbourne, an office I have held for the last eleven years. I have been connected with the Melbourne University for three years.
Were you in the habit of analysing, when at the Scotch College? — Yes; I have been so from the moment of my arriving in that Colony.
I understand you, that the object of the two processes you have described, was to render you certain that the net result which you ultimately obtained was nothing else but pure strychnine. — No; that those two processes were corroborative of each other of the existence of strychnine.
Take Stas's process. Was the object of it to be certain that the ultimate result of the analysis was nothing else but strychnine? — Yes.
So that if, when you had finished, any doubt remained on your mind of your having anything but strychnine in what you obtained, you would not think the analysing reliable? — I do not understand what you mean.
Your first test, you said, was that of taste? — Yes.
The second was that of combustion? — Carbonisation.
Burning the residuum on platinum foil? — Yes.
The third was that of examining the crystals under a microscope? — By polarised light.
And all the other tests were color tests? — All but one of them was not applicable to thoroughly pure strychnine, but to brucia, which is generally found in combination with strychnine.
If the analyst, when the process is finished, has reason to doubt that he has got pure strychnine, would he be justified in relying upon any of the tests of which you have spoken? — The process itself gives the strychnine.
The Judge: I don't quite follow you, Mr Smith.
Mr Smith: Suppose, Dr Macadam, that I enter your laboratory as a student. You give me a few grains of strychnine, mixed with some animal matter, and tell me to test for it. If, after I had done what I could, I said to you, "I am not sure that I have done rightly." would you depend upon the result at which I had arrived? — If you had performed the process rightly, I could depend upon it.
The Judge: Still, I don't quite understand what you mean. Supposing that by any one of the eight tests he has brought out a result very different from what he had been led to expect from his knowledge of the nature of strychnine, that would have destroyed his confidence. Is that what you mean?
Mr Smith: No your Honor. (To the witness.) I should like to know under what impression you started on this inquiry? — I started with the belief that there was a probability, or possibility, that strychnine might be found. That was pointed to in the document that reached me.
The Judge: Did you try for or expect anything else? — I always proceed to a general examination; but I cannot forget what I have received in writing.
Mr. Smith: From whom? — From the Coroner.
Giving, I suppose, his own impressions as to what was the cause of death? — No, indeed. The letters are all here, and can be read.
The Judge: In plain English, a hint was given you to look sharp for strychnine? — Yes, and for corrosive sublimate, as I have stated. But such is the course adopted by every Coroner in cases of this kind.
Mr Smith: Never mind that. You started under the influence of a strong hint from some body, that if you looked sharp you would find strychnine.
The Judge: That does not follow.
The Witness: The hint given to me as to the probable presence of strychnine would certainly not put it into the stomach
No, but you started with the impression that finding it would be the result? — I started with a full determination to do the fullest justice to the process I employed.
The Judge: You looked for strychnine especially? — Yes, principally.
And you looked for other things as well? — Yes.
Mr Smith: Did you not, before you applied any test to the contents of the stomach, fully expect to find strychnine there? — No.
Not from your instructions? — No; for I have often been led astray by letters from coroners in such cases.
If, after you have arrived at the end of your process, on looking back over it, you have any reason to doubt that you have eliminated all other matters, would it be a safe and prudent thing to rely upon those tests? — Taking them in combination, it would.
Even though you had animal matter remaining? — The animal matter, by the processes I have employed, is entirely destroyed.
Well, presumptuous as it may sound, I hope, before I have done, to convince even you that you have not shut all sources of error from your analysis.
Smith's line is clear - he had to break the confidence of the jury in the scientific expert. He, of course, did not need to completely disprove the work of Dr Macadam, it was merely necessary to insert "reasonable doubt" in the minds of the jury. In capital cases, when a decision of guilty meant a defendant's death, victorian juries were very hesitant to pronounce a fatal verdict.
Laboratory practices in general, and Macadam's in particular, were discussed until the court adjourned, then returned to the next day.
THE TRIAL. DAY 4.
Dr Macadam returned to the witness stand, and cross examination by the defence continued. In order for the jury to be confident, beyond reasonable doubt, that strychnine was found in the samples sent to Melbourne, they needed to be sure that it had not arrived in the sample in any other way than being administered by the prisoner in the dock. To insert this possibility was the task of the lawyer for the defence, Mr Smith, and his examination of the doctor was the making of his legal career.
Mr Smith: Will you say that the presence of silica or alumina, as found in the glaze, would be a disturbing element in the analysis? — Not in the slightest.
Very well. I only wish to be satisfied, as we go along, that all sources of error are shut out. I want your answer to this question, which I put to you once or twice yesterday, but got no satisfactory answer — If, as an analyst, you are not not certain that you have excluded all other materials except the one you are looking for, do you feel any confidence in the result? Can you rely upon that result being one to which you can swear in a Court of Justice? — Most confidently.
I am afraid you don't understand my question. Supposing that at the end of the process, you have reason to doubt that the object of the process — namely the elimination or getting rid of all other matters whatever, except the one you suppose would be the result — supposing that you searched for strychnine, but at the end had reason to doubt whether you had detected it accurately — would you then, with that doubt in your mind, come and swear, "I have found strychnine beyond doubt"? — Most certainly not.
I knew what your answer would be, but we must proceed clearly. If I can establish a reasonable doubt in your mind of the correctness of the processes you employed — a reasonable doubt that you had really attained the object of those processes, the separation of all other matters whatever except strychnine — if I can do that, will you be prepared to ask the jury to rely on the evidence you have given? — If you will explain the doubt, I will answer you; but I will not speculate on such a point.
Mr Smith was, however, prepared to speculate upon the point of the "taste test" for the bitter flavour of strychnine. Was it possible that the bitterness could be attributable to another, equally bitter, substance?
Mr Smith: If I suppose an intensely bitter substance — a quinine powder, for instance — to have been taken shortly before death, was the process calculated to cause that substance to disappear? — The tests would not be applicable to quinine — they would leave it undetected, except by taste.
The residuum you have talked of, and stated to be pure strychnine — I beg your pardon, I have never said so.
His Honor was applied to, and read portions of his notes.
Mr Smith: I am glad to find that I was mistaken. I want to state nothing that is not clearly in your evidence. What do you profess to obtain? What is your residuum? — I have professed to obtain an extract or residuum which contains strychnine.
Discussion in court then proceeded as to the differences - and similarities - between strychnine and quinine. Both vegetable extracts, both alkaloids. Difficult to distinguish as crystals under a microscope. One of them a poison, one a medicine. Both stated by witnesses to have been bought by Captain Jarvey. Mr Smith proved himself as conversant with the state of the art of analytical chemistry as was Dr Macadam.
Mr Smith: How did you apply the taste test? — By wetting my finger and putting it to my tongue.
What was the taste? — Extremely bitter.
How do you know you had not got quinine? — Because on the application of the four real tests for strychnine and the color test, in all of which —
Are you prepared to swear that that bitter taste was not produced by quinine? — I am.
Why? — Because I got the other four tests which are characteristic of the presence of strychnine.
All the color tests? — Yes.
Putting them out of the question, and taking the bitter taste, quinine would account for that? — It has a bitter taste.
Not intensely bitter? — No; nothing like strychnine.
We will see what Fresenius says: "Crystalised quinine appears either in the form of pure crystaline needles of silky lustre which are frequently aggregated into tufts, or as a loose white powder." "The taste of quinine is intensely bitter"? — Just come to strychnine.
The Counsel referred to the article "strychnine."
By Mr Smith: "It has an exceedingly bitter taste." Tell me the difference? — I merely judge by my own experience.
By the Judge: You have tasted both? — Yes. Quinine often — strychnine frequently.
By Mr Smith: Is there any essential difference between the two words "exceedingly" and "intensely." You are well acquainted with language, which is the stronger term? — I do not suppose there is much difference.
The Judge: He has not given his view of the difference between the meaning of intensifying words? — Judging by my experience strychnine has a much greater degree of bitterness than quinine.
By Mr Smith: Will you admit the possibility of your mistaking quinine for strychnine. Do you say that you would be guided exclusively by taste in distinguishing quinine from strychnine? Could you take it as a safe guide? — I could.
And for the purposes of swearing in a Court of Justice?
The Judge: He has said he has formed his conclusions from all of the eight tests. Now he says he could distinguish between the two.
By Mr Smith: You could distinguish between the two? — The difference is, in strychnine having a hot as well as a bitter taste. There is a sensation of heat as it passes over the throat.
I will have a solution made, and ask the Jury to taste it.
The Judge: I really should not like the jury to taste.
Mr Smith: They may do as they like about it. I shall ask them to do so.
The jury were not asked to taste the poison which had allegedly killed Catherine Jarvey. But they were required to listen to the topic of "death worms"...
Mr Smith: As you will not undertake to deny the possibility of the matter of which the brain is composed getting into shape, in the form of gas. — You know what are called death worms, I suppose? — Yes.
These death worms are supposed to be locomotive, are they not — capable of passing from one part to another? — I have no personal experience of it. You may as well ask me for experience of that as the other.
The possibility of the death worms destroying cerebral matter first — crawling into the stomach and depositing their excrement — do you deny the possibility of that? — The possibility of it — are you aware of the nature of the human stomach? — It is not your place to ask me such questions.
I am not putting these questions to show I am clever or anything of the sort. I want to know how it is a man can come into this court and swear positively to these things when there are all these possibilities in the balance? — He refers to effects.
I refer to the effects that may be produced by death-worms. Is it not a possibility for them to deposit some of the cerebral matter in the stomach — do you undertake to deny the possibility; that is all I want to know? — Since you ask me the question, I say they could not.
Why do you give that answer? — From the anatomical relation that the base of the skull bears to the mouth and from the relations it bears to the stomach.
Could they not find their way through the process that passes through the nose? — There is no communication between the nose and brain and skull.
I mean no disrespect: but my object is to show that your knowledge of analytical chemistry is not to be trusted. I don't say this reproachfully: many others, no doubt, would be equally at fault. My object is merely to show the jury that your evidence is not reliable. I don't wish to affront you or insult you; but, believe me, I am in earnest, and do not wish to be taken as being anything else.
The Crown Prosecutor: I don't see why my friend should treat the witness in this way.
Mr Smith: I was perhaps, too warm. Do you accept that apology, Dr Macadam? — I suppose it is absolutely necessary I should.
Have you tried to detect any in the human stomach? — I don't suppose, unless I went and poisoned a woman, that I could get at that process.
It is a pity we cannot get a woman to try the experiment? — Well, you seem to have such an interest in it, you might try it yourself.
Did you bring with you any of the residuum obtained? — No, none.
You did not, surely, use it all in the process which was so highly satisfactory to yourself? — Yes.
What was the size of the second residuum: was it as large as the other? — Yes, about the same size.
And you wiped it all off? — Yes, the second process was to establish the first.
Did it not strike you, when you were coming into a court of justice, to give evidence on a trial involving the life of a fellow creature, that it would be desirable to satisfy the jury, by bringing before them the material found, and paying "Here gentlemen, I show my color-tests. You see that what I say is true." Why did you not do that? — Because the Lord Chief Justice of England, Lord Campbell, refused to admit experiments in a court of justice. — (Applause)
The Judge: I wish the police would apprehend every person disturbing the Court. I understand on a former occasion they did not do so. I wish the Commissioner of Police would take notice of it; it is their duty to bring forward any person disturbing the Court.
By Mr Smith: That last answer of yours has called forth the applause of the crowd and the rebuke of His Honor, in which I coincide. Is it a true answer? Do you mean to tell me the Lord Chief Justice of England refused to allow a witness to bring in a residuum, and show to the Jury "Here, gentlemen, is a portion of what I found, and I applied my color tests, and what I saw of color is true, and the carbonisation is true." Did the Lord Chief Justice refuse to admit such demonstration as that? — That is a different sort of evidence from what you spoke of.
Why did not you bring over one of those glasses; why did not you do this: Say to yourself, I am going to be called as a witness in Dunedin; I will not use the whole of the two residuums, because I am expected to convince other men's minds by my evidence, and they would like to have the evidence of their own senses. Why did you not bring half of each? — Simply because I have never seen tests applied in a Court of Justice.
Do you mean to say the Lord Chief Justice refused to admit such evidence in Palmer's trial?
The Judge: I think Dr Macadam is right.
It was a long day for Doctor Macadam. Almost all of the trial's third day was spent in examining and cross-examining the evidence of the chemical analysis of Catherine Jarvey's stomach and liver. That done with, Elizabeth Jarvey was called to the stand again, to be asked why it took so long to report her suspicions as to her mother's death. Then Robinson, part-owner of the Titania, was called to give details of Jarvey's actions after he had been dismissed from his post of Captain. The court adjourned at 5.45pm.
The Trial, Day 5
At the next sitting, Edward William Alexander talked about the differences in taste between strychnine and quinine...
...I am not acquainted with the processes of the Laboratory, other than from reading. I have never applied pure strychnine to the point of my tongue.
Mr Smith: I will ask you to do so bye and bye, Dr Alexander. I shall have a piece in Court in the course of the day.
The Judge: I don't know what he might say to that.
Mr Smith: You would not be afraid to do it, Dr Alexander? — No, I should not.
Mr Smith: I have done it frequently of late.
The Judge: It would scarcely be good for the purpose of evidence, I should think.
Mr Smith: I beg your Honor's pardon. It is of very great value, indeed.
Alexander gave evidence on the process of rigor mortis and the observable differences between crystals of quinine and strychnine. Then it was Dr Macadam's turn to again face the critical tongue of Mr Smith.
Mr Smith: I know you have been hard at work since you arrived — reading Fresenius a great deal, I believe? — I have not, sir.
You have not? — I have not, except for a few hours.
Do you not recollect on this day week, after the Court had risen for an adjournment, my asking you "I have not got a late edition of Fresenius, but I understand you have the new one; will you favor me by letting me have a look at it?" Do you recollect that, and, if so, what was your answer? — My answer was that I gave it to you; a thing I will never do again.
Was that your answer, sir? — I don't remember my particular answer, but I know that I gave you the book.
How did I get it sir. I'll have this out with you! What was the answer you gave — here on this very spot where I now stand? — On Monday last?
On Monday last, sir, when I asked you, as respectfully as one man could ask another, "Will you do me the favor of lending me that book? — Did I not give it to you sir?
How did I get it sir? Did you give it to me then? Do you forget what happened? If so, I will ask you... — I gave it to you sir, as a matter of courtesy; I had no reason to do so of right.
Did you not reply this sir? — "No, I cannot give it to you; at all events, not without the leave of the Crown Prosecutor"? — I did.
We separated then; myself under the impression that the question would be referred to the Crown Prosecutor, and from the liberality displayed by him in this trial, I had no reason to expect I should get the book. Did I not get it late at night, through Dr Hocken? — Yes.
And on condition that I returned it in two hours? — Yes.
The Crown Prosecutor: My friend should not speak as he is doing. He has been shown every courtesy in the course of this investigation.
Mr Prendergast: I would submit, your Honor, that there should be none of these imputations thrown out, as my friend is doing.
Mr Smith: Indeed, I am not throwing out imputations. He says that that was his answer? — Quite so, and, on behalf of the Crown, I think it was my duty to do what I did.
The Judge: Oh, never mind that.
Smith then went on to question Macadam on the difference between a qualitative chemical test and a quantitative - Macadam had used the former to establish what was in the samples received by him, but not how much of any given substance. Discussion then progressed, at length, to the great similarity in the chemical composition of the two substances. Then Smith came to his point:
Are you prepared to deny, supposing quinine to be in the human stomach, that after the process of decomposition of the body has gone on for three or four months, this quiniline, which may be extracted from quinine, may not combine with other gasses — hydrogen, nitrogen, and oxygen are the results of decomposition, are they not? — No, sir.
You are certain of that? — Yes.
Does not the human body, in decomposition, evolve those gases? — It does not, sir.
The Judge: If you run on to other questions so, I shall forget what are the answers you want.
Is it not possible, supposing quinine to be in the stomach originally, that, in decomposing, the quinine may be reformed into a substance which will present some, if not all, of the peculiarities of strychnine, as far as color-tests are concerned? — No, sir.
You deny that? — I deny it.
On what authority? — From the circumstance that such a result has never been observed in any of the bodies that have been exhumed and examined by any of the chemists in this world.
How can you undertake to say that? Have you got a special report on every body ever exhumed for the purpose of chemical examination? — I have a very good chemical library, if not the best in this hemisphere.
Smith then made allusions to the rapidly advancing science of chemistry - the unthinkable had indeed occurred quite recently - the previously impenetrable boundary between organic and inorganic chemistry had been broken by the synthesis of urea. What further wonders were to be discovered? Surely, the natural synthesis of one compound from another almost identical compound was not beyond the realm of the possible?
A great many people, some years ago, believed that it was impossible to propel a ship by steam; and many other things that have come to pass were believed to be equally impossible. But will you, as a man of science, undertake to assert that here we stop short - that this is possible and that is not? Is what I have put to you possible? — I do not believe that quinine could, under any circumstances, become strychnine.
Do be good enough to understand my question. It is not as to what you believe, but what, as a man of science, you are prepared to deny? — I do deny it, because it has never been proved in any way whatever.
You deny it for that reason? Is that the case? — Yes; as I would deny that the sun would not rise tomorrow morning.
Have you equal authority for making a positive affirmation about the two things? The sun has performed its diurnal course for thousands of years. We know that as a matter of history. Do you know anything as certain to the contrary that quinine can form such a compound in the decomposing body as will give the play of colours as shown by strychnine? — From all our present knowledge of chemistry, it could not.
Perfectly true. But have you the same authority for denying that what I have asked you is possible, as you have for denying that the sun will not rise tomorrow morning? — As a chemist I would deny it.
But why? — Because our knowledge of these two substances is not restricted to a year; or a few years.
The Judge: In Courts of Justice we are imperfect; we are but mortals; we never can arrive at that certainty of which mathematics are capable. We never can put a proposition to the jury so certain as that an equilateral triangle has equal angles, or that two and two make four; we can only produce moral certainty.
Mr Smith: But this witness goes further. He takes upon himself to deny that what I put to him is possible.
The Judge: No, he does not: He says, "I believe and hope that there is no limit to scientific discovery." He has given evidence as to the present state of science.
Mr Smith: Let me understand what it is you do? — I profess my belief, as far as chemistry at present extends; I can go no further.
I think you are very safe, to limit your belief to that extent. I asked you on Saturday whether you had not expressed yourself exultingly as to the effects of experiments performed at Dr Hocken's house upon this trial. You denied, as I understood you, most emphatically, that you had done so, and you appeared to be overcome by emotion while giving that denial. I must ask you that question once more, and I will put you particularly on your guard, by making the question more specific.
The Judge: I don't think the witness should be threatened.
Mr Smith: I don't threaten him, your Honor, I simply put him on his guard.
The Judge: Ask him the question apart from any consequences.
Mr Smith: The question is this — Whether, after several dogs had been killed by strychnine, you did not say; "He," alluding to the prisoner —
The Judge: You may ask him whether it was not in the presence of So and so.
Mr Smith: In the presence of Dr Eccles — do you know him? — Yes; but I am not aware that Dr Eccles was present at the experiments.
Dr. Eccles and Dr Hector? Neither Dr Eccles nor Dr Hector was present at the experiments.
The Judge: You are asked, Did you exult in the result of your analysis, when given in this Court, in the presence of Dr Eccles and Dr Hector? — I think it was this your Honor, that I exulted in the death of the dogs.
The Judge: The question is not as to that.
Mr Smith: I will be more precise: Did you use these words: 'He is getting deeper and deeper into the mire every hour'? — I did so, in reference to your delay of the case.
Did you say "I will have his children dug up, and will examine them too, and he shall be tried for all three"? — No, sir, I did not.
Do you swear that? — I swear that. What I said was this: That I thought if this trial broke down in reference to the wife, most probably the government would order the children to be dug up — that I would have to take their stomachs to Melbourne for analysis — and that a new trial would have to be instituted.
You did not say that you would have them taken up? — I have no power to do so, and it would be foolishness for me to say so.
Mr Prendergast (by consent of the Court): For what particular object were these experiments at Dr Hocken's made? — With a view to determine the dose necessary, the period of death, and the period of the setting in of the stiffness of the corpse.
The Judge: In animals? — In animals, your Honor.
The next evidence was given by members of the Titania's crew as to the existence - or not - of rats on board.
Then Dr Thomas Morland Hocken described treating a patient for strychnine poisoning. He stated that the symptoms he observed, before and after death, were consistent with Elizabeth Jarvey's description of those of her mother, and that they were not consistent with those of tetanus, or those of "hysteria." He gave his opinion on the examination of Catherine Jarvey by Dr Hardy and the state of mind, and therefore the accuracy of testimony, of Elizabeth Jarvey.
Then came the turn of Mr Lumb, neighbour, describing the appearance of Catherine Jarvey after death, and then came mention of the "other woman."
William Robert Mitchell: I am manager for Cobb and Co, coach proprietors. I know the prisoner. At the latter end of August, I came up on the coach from Waikouaiti. I see Margaret Little here. She was a passenger by the coach. I saw the prisoner on the arrival of the coach in Dunedin. I am not sure whether it was at half-past two or half-past six — whether on Wednesday or Thursday. The prisoner handed Miss Little out of the coach. I did not see where he went, or where she went. A cab was either called or pausing, and they went towards it, but there was a crowd gathering, and I did not see more.
By the Judge: I do not, your Honor, watch what all our passengers do.
William Duthie: I am a confectioner, and live in George street. I know the prisoner and Margaret Little, I have known her 16 to 18 months. She has been in the habit of coming to my shop, off and on, during the whole of that time, to make purchases. The prisoner has often come to my shop; the first thing was he subpoenaed me as a witness for him in a case. He was there several times when Margaret Little was there; they conversed together. We all joined in together. On one occasion they left the shop together. To the best of my belief that only happened once, she had said that she came to wait for a friend.
The Judge: No; I think that what she chooses to state in a shop is not evidence.
Examination continued: When they left the shop together, I think it was after ten o'clock in the evening.
By Mr Smith: It was after ten o'clock when they left. I could not say how many times they were at the shop together. I am sure it was more than five, but I don't think it was forty. He came to see me often; he knew my wife well; his wife and mine were playmates together. Oh! God bless you, no; it was nothing extraordinary his being at my shop. We used to talk of old times; for we came from the same place. We used to have a glass occasionally — not in a little back parlor, but in my workshop, nothing more. I could find a glass for you, I have no doubt; but you never call, Mr Smith.
A few witnesses recalled to repeat evidence for the benefit of the jury concluded the day's proceedings.
THE TRIAL - DAY 6
The sixth day of the trial, March 21, 1865, began with a debate as to the advisability of calling Mr Lumb - his previous rambling discourse having raised questions as to his sanity. It was decided not to call on Mr Lumb.
Then the defence counsel, Mr Smith rose to begin his rebuttal of the Crown's charges on behalf of his client. This took about six hours. He touched upon the rumours that were current regarding the fates of Jarvey's children who were buried back in Tasmania - as part of asserting that the jury must disregard all but the evidence placed before them in that court. He did his absolute best to frame Dr Macadam as less than competent for the purposes of the trial and Elizabeth as suffering from an understandable mental frailty due to the witnessing of her mother's death.
THE TRIAL. Day 7
The seventh trial day began with Mr Smith attempting to persuade the Judge to leave out the evidence of Dr Macadam from his summing up. This the judge declined to do. After the Judge's summing up, the jury retired.
The jury were kept at their deliberations from 6.30pm on the last day of the trial, a Tuesday, until the morning of the following Friday. They were two nights without sustenance or a fire, presumably as an encouragement for them to arrive at a verdict. This they were unable to do. They were finally discharged and Jarvey remanded.
It seems that one of the jury had strong opinions about capital punishment. These opinions were stronger than his opinions as to Jarvey's guilt and so he could not vote for a guilty verdict. This juror would seem to be Dr Schlesinger, who wrote the following after the end of the second trial.
THE FIRST JARVEY TRIAL.
To the Editor of the Daily Times.
Sir — As the trial of Captain Jarvey, for the murder of his wife, is now over, I now feel at liberty to make a few remarks in connection therewith — having been subjected to considerable annoyance by statements, both in writing and conversation alike, contrary to fact and sound reason.
1st. It has been said that I am a foreigner, and do not understand the English language.
2nd. That I am opposed to capital punishment.
3rd. That I am obstinate in such cases.
My answer to the first of these statements is — I am a native of Switzerland, and became naturalised as a British subject in Jamaica, in 1848; and, during my residence in that island, my competence in this respect was never doubted. Having held several honorary appointments, one of which was a Justice of the Peace; besides, I have received thanks for my conduct as hon. Treasurer to the Letchfield Free School, from the Chief Justice J. Raw, the Attorney General, and other honourable members, at a meeting held in King's House. Although not a fluent speaker of English, and having a foreign accent, yet, I feel possessed of sufficient acquaintance with it to enable me to judge of the weight of evidence, and better perhaps that the greater part of my brother jurors.
My answer to the second — I deny it altogether; and, as an instance to the contrary, state that in February, 1850, being a juror in Kingston, Jamaica, in a case of murder, I was for a considerable period in a minority of five, to find the man guilty; and latterly stood alone in that opinion; after forty-eight hours, I yielded with reluctance to the eleven. The Press and the public were then of my opinion. The man was further charged, committed for trial, and ultimately confessed his guilt of the murder.
As to the third charge of obstinacy — I think a man only a weak and pliable fool that will alter his heartfelt opinion, at the bidding of others, unless he be satisfactorily convinced of his errors, and more particularly in a case where the life of a fellow creature is concerned.
Although, probably, it may appear superfluous at this time to state my reasons for holding doubts of Jarvey's guilt; yet, with your permission, I will shortly state them. Mr Macadam was a principal witness, and his admission of having left the matter for analyzation out of his sight for twelve hours, in the charge of Mr Kirkland, who was not here to be examined, I considered sufficient to shut out his evidence, seeing that there was a possibility of it being tampered with.
The evidence of the other principal witness, Miss Jarvey, was so unsatisfactory in its nature, and so strangely contradicted by her brother Andrew, as to cause very serious doubts in my mind as to her credibility; more especially, considering the hesitancy Miss Jarvey had in answering the questions put to her by Counsel, and her having no recollection who was the writer of certain letters and their contents, that she received while on the Dunstan. Having come to this conclusion there was no remaining evidence sufficient to warrant a conviction.
I could enlarge on the subject, but have already trespassed too largely on your space, therefore, trusting in justice to myself, and the satisfaction of my friends, that you will insrt this letter.
I am, &c., S. Slesinger, V.C. -Otago Daily Times, 21/9/1865.
Dr Macadam, stung by his savaging at the hand of Jarvey's counsel, returned to Melbourne to prepare for a new trial. This he did obsessively. It took a great toll on his health.
We have the sorrowful duty of announcing the death of Dr. John Macadam, whilst on his passage to Dunedin to give evidence on the trial of Captain Jarvey. It will be remembered that at the last Criminal Sitting of the Supreme Court, this case was postponed in consequence of the serious illness of Dr. Macadam, and the strongly expressed opinion of his medical advisers, that a sea voyage at that inclement season of the year would be attended with great danger. Still suffering from the effects of the unfortunate accident which befell him on his passage back to Victoria, he embarked on board the Alhambra, in order to repeat his evidence during the present session of the Court. His shattered constitution proved, however, unequal to the fatigues of the voyage, and he expired early on the morning of Saturday. His death will be deeply regretted by all who knew him. He was a man of great scientific attainments and reputation, and had many friends in this province as well as in Victoria. -Otago Daily Times, 4/9/1865.
John Macadam's accident is described as "a fall." He was 38 years old when he died.
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