THE TRIAL OF MILLER.
NOTWITHSTANDING the excitement it has created, the crime of which Muller has just been most righteously convicted has from the moment of his arrest been one of a very common-place character. Until the criminal was caught it seemed as if he was a murderer of genius, who had fathomed the great truth that the more audacious the crime the better the chance of escape. The train takes three minutes and a half to travel from Bow to Hackney Wick. Muller must have -known that he had just that time to slay his victim, rob him, dispose of the body, and make his escape; and it would be unjust to deny that a murder, thus conditioned, is marked by great originality of design and what the French call aplomb in exe- cution. Not quite equal in these respects to Williams, the famous Ratcliffe Highway murderer, Muller showed himself superior in self-restraint to that great artist, whose too ardent love of his profession induced him to repeat his crime while it was still the talk of town, and thus brought about his fall. Muller had the moderation to be con- tent with one murder, at all, events, at present. But though no doubt these qualities give the man considerable claims to the admiration of the public and the penny papers, we must repeat that after he was caught the case was a common-place one. If Muller had set about tying the noose round his neck he could scarcely have acted otherwise than he did. Changing hats with the murdered man was a fatal blunder ; but a man of the least ability would have destroyed Mr. Briggs's hat as soon as he discovered his mistake,— Muller wrote his name and London address in it. A cautious man would have gone out alone on Sunday so as to have a plausible way of accounting for the possession of the watch in case of need,—Affiller took care that there should be evidence to account for his whereabouts during the whole interval between the crime and the sale of the chain. From first to last he went about bragging and displaying his trinkets, and making the evidence which was to convict him in a way which shows that the original conception of the crime—the only clever thing about it—was not really a deeply-pondered design, but a mere unpremeditated brutality—blundered on, not contrived. • Some lovers of "murder considered as one of the fine arts" are about to represent this to the Home Se- cretary as a ground for sparing Miiller's life. For our own part, we confess to an old-fashioned prejudice for hanging gentlemen who have momentary impulses to commit murder.
If, however, it is not quite easy to comprehend the interest which has been felt in the criminal himself, there is very much in the trial which deserves consideration from those who are interested in the working of the criminal law. We are so accustomed to pride ourselves on the love of fair-play which predominates in our courts that we are not perhaps always awake to the injustice of some of our rules of proce- dure, and publicists often shrink from taking advantage of the opportunity for pointing them out, which a great trial presents, because they fear to put weapons into the hands of that knot of weak humanitarians who seek to abolish capital punishments by procuring a commutation of sentence for every murderer. In this case there is no such fear ; the case as it stood on the depositions was so cogent that the culprit had iu reality no loophole of escape. No possible ingenuity could suggest an explanation of the facts proved by the wit- nesses which would be consistent with the prisoner's inno- cence. It is not too much to say that if this had been a mere robbery the prisoner would have been advised to plead guilty, unless lie could acquit himself of the charge by positive evi- dence. But you cannot advise a man to plead guilty to a capital crime, so the defence was driven to call witnesses. The result of this was that even if the prosecution had been left to private hands, the counsel for the Crown would have had a reply, and Muller therefore suffered no peculiar hardship from the privilege of the law officers of the Government to have the last word in every case. But the question still remains whether that privilege-is not in itself an injustice, as oppressive as it is invidious. What possible reason can there be why the practice of a criminal trial should be altered simply because the Treasury undertakes the prosecution. If the counsel for the prosecution ought to have the last word when the prisoner calls no witnesses, he surely ought to have it in all cases. If he ought not—which seems to be the theory of the law—why is an unfair advan- tage to be given to the Crown officers? How can that be just forthe Attorney-General which is unjust for Mr. Briefless?
In this case of Muller's the evidence was so strong that we- doubt if any counsel would have taken the responsibility of refusing to call witnesses who offered to prove an alibi. But Mr. Serjeant Parry had not the chance. If he had called no witnesses the Solicitor-General would still have had the right to reply, and any effect which he could hope to produce on the jury by merely commenting on the evidence would inevit- ably be erased from their minds as each fresh wave erases from the sand the impression of the last. The old idea that the. Sovereign is entitled to do as he likes in his own Courts is a.
mere relic of barbarism. Courts of law are not now machines by which the Crown preserves order, but tribunals for administering justice. Privilege has no longer any place in them, and the sooner the law officers abandon this dis- creditable distinction the better. Indeed, we are inclined to go very much further, and doubt whether the prisoner ought not to be allowed the last word, whether he calls witnesses or not. It is a privilege conceded to him in the French Courts, whose inhumanity we are wont to comment on in no measured terms. Certainly it is a privilege, which bears no comparison in point of value- to the right of cross-examination which our law gives him, and as it is not in this country at least conceded to defendants in civil causes it is a concession which must be asked from our compassion rather than our justice. But if the right of reply in all cases is to be given to either side, it should be given to the prisoner not to the prosecutor. The system which gives it as a privilege to the most powerful of all prosecutors is simply a barbarous anomaly.
Still, as we have said, the Crown had no occasion to exercise its privilege in Muller's case, and he of course suffered no injury from it, but there is a distinction between the practice in civil and in criminal trials of which the same cannot be said. It always used to be a subject of complaint that when the defendant called witnesses his counsel, and, on the other band, when he did not the plain- tiff's counsel, had uo opportunity of commenting on the evidence tendered by their clients after the jury had heard it.. In civil cases this right has now been conceded for many years, but, strange to say, it is denied in criminal cases. If the defendant in a civil cause calls no witnesses, the plaintiff's counsel sums up his case before the defence is heard. If the defendant calls witnesses his counsel sums up the case for the defence before the plaintiff replies. But in criminal cases- it is still otherwise. Those trials which ought to be con- ducted with more scrupulous care to avoid even the appear- ance of injustice than all others are in fact conducted with less, and without a shadow of reason. It is impossible to comment adequately on evidence before it has been given. It is impossible to foresee any trifling discrepancies there may be between the different witnesses, or to know by a spirit of divination what will be their manner in the box. In civil causes where mere money is at stake this defect in our procedure has been removed. If, as Serjeant Parry bitterly remarked, "this had been a miserable squabble between a hackney -cab and a dust-cart lie would have been permitted to sum up the evidence for the defence. But it was simply a case of life and death, and so the law of England forbad it to be done."
There was another peculiarity in this trial which deserves some consideration,—the refusal of the Crown to call Mr. Lee. That refusal is perfectly in harmony with our system of criminal procedure,—the litigious theory as it is named,— and certainly if Lee was to be called it was the business of the defence to call him. As the Crown was conducting the prosecution, Serjeant Parry could get nothing by not calling witnesses, and was sure to call Lee, and Miiller consequently lost nothing by the refusal of the Crown. But suppose this had been a weak case, and it had been left to Mr. Briggs's family to prosecute, so that Serjeant Parry determined not to call witnesses, —or suppose that there had been no German Legal Pro- tection Society, so that Muller had been undefended,—the result would have been that the jury would have had to decide the case without hearing Mr. Lee. Could that have been regarded as satisfactory ? Surely the prosecution ought to call every witness who pretends to know anythineD about the case, whether they take a fancy to him or not. The Solicitor- General could have said that he, for his part, did not believe the man, just as easily in his opening as his reply. The jury ought to have the whole case before them—what tells for the accused as well as what tells against him. The object of the prosecution ought to be truth not victory. And if Lee had not effectually disposed of his own evidence by his demeanour, it would be worth noting that he dtponed that poor Mr. Briggs had a habit of sleeping in the railway carriage, which entirely disposes of the theory of 3Iiiller's physical in- capacity to master his victim. These considerations are, we think, of a nature to make law reformers pause before they unite in swelling the chorus of self-glorification which has filled the daily papers. We point out these flaws in our criminal procedure the more boldly, because they could,not possibly in this case have been really injurious to the prisoner. kothing could have saved him short of the rather improbable hypothesis that the Arch- bishop of Canterbury and the Chancellor of the Exchequer had sworn positively that he spent the whole evening from eight till eleven in the drawing-room of Lambeth Palace. An alibi proved by witnesses, of doubtful character could not weigh a feather's weight in the scale against the four great facts that a hat just likeller's was found in the car- riage, that a hat just like Mr. Briggs's was found in his pos- session, that the watch was found in his possession, and that he sold the chain early on Monday morning. Every fresh fact elicited by the trial did but strengthen the cogency of these four. As the matter turned out it would have been better not to have cross-examined the witnesses for the prosecution at all. Indeed, when a prisoner is guilty, the more you sift the evidence the more clearly does his guilt appear. It is laid down as b cardinal rule of cross-examination that you should never ask a question, the answer to which you do not know. Serjeant Parry might fairly have assumed that the lining of the hat found in the railway carriage was a common one, but in his anxiety to make this clear he ventured on putting the question to the hatter, and identified the hat to a certainty. There were at most but three or four—probably not more than two—perhaps but one of these linings, and two wit- nesses swore distinctly that ]Miller's hat had such a lining. Again, it is sought to show that he was at Camberwell at half-past nine, and therefore could not have reached the Fenchurch Street Station by ten minutes to ten. This depends on the accuracy of a wicked old woman's recollection of the exact date of an event which made no impression on her memory at the time, and to which her attention was not called till two months after it had happened,—and not only on the accuracy of her memory, but also on the accuracy of her clock. While it is certain that if Muller went straight from the Repschs' house he would have got to Camberwell at a quarter to nine, that he did not stop there, and if he went straight home again by railway would have travelled by the train which conveyed Mr. Briggs. The case is really a perfect instance of the conclusive character of circumstantial evidence. If it is strong enough to ensure a conviction, it is the strongest of all cases, for the more closely you go into the facts the clearer it gets. A. guilty man should leave the evidence alone. He may not be acquitted if he does ; but he is sure to be con- victed if he'does not.
So far as the conduct of the trial, assuming the perfection of our rules of procedure is concerned, the praise which has been lavished on it is certainly not excessive. Mr. Serjeant Parry performed a thankless task with zeal and strict propriety; elo- quence, and if a critical judge may feel some doubt whether his tactics did not sometimes savour of desperation, he was driven on desperate courses by the hopelessness of his case. The Solicitor-General, on the other hand, was careful to preserve the proverbial moderation of our courts, and his reply was really a masterpiece of cogent reasoning. But the skill of the actors does not prove that our criminal procedure is be- yond criticism. And looked at from that point of view this trial brings defects into the light which forbid the jurist to fall in with the common optimism of the day, and cry, " Rest and be thankful I"
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