Page:The Green Bag (1889–1914), Volume 09.pdf/220

 The Legal Aspect of the Maybrick Case. feel that such an avowal, if made, should he made in. the form of a judgment of the court and not in the form of an opinion of counsel. "In reference to the questions put to us by Messrs. Lumley and Lumley in this case, I am of opinion that, assuming the facts of the case and irregularities of procedure, both by judge and jury, set forth in the instructions, can be conclu sively proved, the court should be invited ex debito justifiât to set aside the verdict and order a new trial, especially as there is no recorded case of a refusal by the Courts to grant a new trial in a case of felony. While, on the other hand, the case of Regina v. Scaife (17 Q. В., p. 258, and 18 Q. В., р. 773) stands unreversed, in which case the prisoners were convicted of felony at the assizes by a properly constituted jury, upon an indictment which was correct in form, and where, notwithstanding this, the Court of Queen's Bench, consisting of four judges sitting in banco, ordered that the verdict be set aside and a new trial granted, and where the prisoners, having been again convicted at such new trial, under went a fresh sentence of the law. "I deem it therefore presumptuous in me, as counsel, to advise that any court would overrule that case, or would regard the Rules of Criminal Procedure to be so inelastic as to compel the court, under such circumstances as those set forth in the instructions, to refuse to set aside the ver dict and order a new trial, in Mrs. Maybrick's case, upon the bare ground that it is a case of felony. "Having regard to the provisions of the Judica ture Act, 1873, and the Rules of the Supreme Court, I am of opinion that the High Court has jurisdiction to entertain an application for a new trial of a case tried at the assizes, which are thereby constituted a court of the High Court, inasmuch as there is now no necessity for having the case removed by ceriiorari, or otherwise, into the Queen's Bench previous to the making of such application. (See Regina v. Dudley, 14 Q. В., р. 280, and Mellor v. Royal Exchange Shipping Company, the 'Times' ' Reports, p. 663.) "I am further of opinion that, in the event an ticipated by my learned friends, of the Court re fusing to follow the precedent of the Scaife case, an application should be made to the Court to follow the precedent of the Murphy case (L. R. 2 P. C. 535), where the record was allowed to be amended, and that the Court should be asked on Mrs. Maybrick's behalf to direct that an entry of the conduct of the Jury, and other irregularities mentioned in the instructions, be endorsed on the record (See 2 Hale's Pleas of the Crown, 308, where Lord Hale says that an irregularity ' is to

193

be, as it ought to be, endorsed on the record '), and that this application should be made for the purpose of putting such an error upon the record as would form a foundation for a writ of venire de novo. "I am further of opinion that the advice given to the Queen by the Home Secretary as to exer cising Her Majesty's prerogative, on the ground that the evidence left a reasonable doubt whether his death was, in fact, caused by the administra tion of arsenic (which in this case is equivalent to a reasonable doubt whether murder had, in fact, been committed), and also the course taken, in consequence of that advice, of applying to and obtaining from the Court an order under the provisions of 5 George IV., cap. 82, directing that Mrs. Maybrick be kept in penal servitude for life, are unconstitutional, and that her imprisonment is consequently illegal; and, therefore, that an application can be properly made for a writ of habeas corpus with a view to obtain her discharge on the ground that she is illegally detained. "In reference to the special question put by Messrs. Lumley and Lumley thus : ' Does the evi dence disclose any sufficient grounds for the state ment made by the Home Secretary in his advice to the Queen, viz. " the evidence leads clearly to the conclusion that the prisoner administered, and attempted to administer, arsenic to her hus band with intent to murder "? ' I can, after care ful perusal of the evidence, find no sufficient ground for such a statement, which is, moreover, contradictory to the summing up of Mr. Justice Stephen, who pointed out (e.g. p. 36), 'The the ory is that there was poisoning by successive doses, but I do not know that there was any effort made to point out the precise times at which such doses may have been administered.' A careful perusal of the evidence makes it clear to me that no such occasion of administra tion, or attempted administration, of arsenic by Mrs. Maybrick, either with or without felonious intent, can be pointed out as would afford the Home Secretary any sufficient ground for the rep resentation he made to the Queen; and further, that the only ground to be found in the entire proceedings for such a representation is what Mr. Justice Stephen described as ' the theory ' of the prosecution as distinct from ' the evidence.' (Signed) ALEXANDER W. McDouGAL. LINCOLN'S INN, April i2th, 1892."

Whatever may be thought or said by counsel, of the views of Mr. McDougal, by those skilled in English criminal procedure, and concerning which his associates do not seem to have assented, these opinions do