# Once a Week (magazine)/Series 1/Volume 3/Assize intelligence—very ordinary - Part 2

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ASSIZE INTELLIGENCE—VERY ORDINARY.
BY ALBANY FONBLANQUE, JUN.
CHAPTER II.
Reader! Listen once again to the voice of wisdom—unto the words of Charley Davis:
“By Jove, old fellow, a pretty girl is never more captivating than when she is making tea.”
It was the sight of Grace Wardleur, wielding the sugar-tongs, that elicited this observation whispered, parenthetically, into my ear as my cup was presented by the roundest and most snowy arm in the world—a plump chiseled arm, up and down which, as it was lifted and fell, a plain red gold bracelet slipped coquettishly, leaving behind it a track of little pink dimples that died out like blushes to mark where it had pressed—oh, lucky bracelet!—on the dainty limb! A cool fragrant arm draped bewitchingly in folds of soft and cloudy lace, and ending in a fairy hand that—— Woe is me! Oh! Charley!—of the piercing eye and silver tongue—how is this? You were my fag at school, and a dirty little dunce you were. Have you not come snivelling to me many a day to do your nonsense-verses for you? Candidly confess, Charley, that even now you are not a profound and learned pundit, and I will admit that the style in which you part your hair behind, and pin your scarf, is unapproachable,—that your self-confidence is sometimes quite appalling, and that what perhaps I shall best describe, by calling your “extra newspaper news,” about great and famous persons moving about in this world of ours, makes you the honoured guest alike of boudoir and smoking-room.
It was a mistake of mine, introducing you to this family, Charley Davis.
Jack Wardleur was a baby in arms when I was a young man. I have known the girls since they wore their hair in long tails dangling down their backs, and strummed the “Battle of Prague.” Their comely mother—God bless her!—was my kind and generous comforter in a very bitter trial years and years ago, when—but never mind. I was the white-headed boy of the house, the always welcome guest,—chief conspirator in all the little schemes and loving surprises that are always going on in this pleasant household. I am not less liked, or welcomed, or trusted, now; but, oh, Charley! Charley! why does winsome Grace cast down her violet eyes when you speak to her,—why have you assumed that humble air towards the gentle girl? What means that tremble in her voice, and why should you speak so low? Ah, me! You might—but, no matter. Let me proceed with my narration.
As soon as we had finished our tea, “Jack,” said Charley, “when you’ve quite done toasting your shins by the fire, perhaps you’ll come and be tried for your life.”
“All right,” said Jack coming forward, “but you can’t hang me for robbery.”
“Yes, but I can,” replied Charley, “at least, I can, and must order sentence of death to be recorded against you; should you be convicted of that, or any of six other crimes short of murder.”
“What are they?” inquired Grace.
​“Well, we must not talk about two of them, but robbery accompanied with violence;—setting fire to houses in which people are residing, attempting to murder, and scuttling ships are all capital offences, upon conviction of which judgment of death is recorded, but never of late years put into execution.”
“How much imprisonment, then, can you give me,” asked Jack, “if this perjured Scribbler’s story is to be believed?”
“Penal servitude for life. But we must try you first, and talk about your punishment afterwards. There, now,” he continued, wheeling round an amber-satin ottoman, “that is the dock, and the prisoner, on account of his delicate state of health, is permitted to sit down. This sofa is the bench, and Tiney! jump up good doggie (Tiney was a Skye terrier somewhere underneath his long hair); Tiney, I say, is the high-sheriff, who is privileged to sit on the right-hand of the judge (that’s myself). Observe the high-sheriff’s sword and cocked-hat,” placing a pen-wiper under Tiney’s paw and propping the paper-knife against his side.
“Do you know, mamma,” observed Fanny, “that Sir Hildebrand Jones wore a cocked-hat and sword, to-day, with his ordinary evening dress. Do you not think it is a very ridiculous costume for a high-sheriff to wear in the day time?”
“My dear Miss Wardleur,” rejoined Charley very sententiously, “it’s the fashion to do so. Need I add anything more?”
“I suppose not,” was the reply; “but what does the high-sheriff do?”
“What will Tiney do?” asked Jack, rolling that shaggy favourite over on his back.
“Sit still like a good dog, and not make a noise,” answered Grace.
“Then,” said Jack, restoring the subject of the conversation to a sitting posture, “if Tiney does so, he will make an admirable high-sheriff.”
“But let us get on with our trial. As before observed,” said Charley, “I am the judge. On my left-hand is my secretary, and at a desk, somewhat further on, is the under-sheriff—an attorney who acts as ‘Tiney’s’ deputy, and makes a very good thing of it. It is his duty to see that judgments are put into execution. Immediately underneath me is the clerk of assize, who has prepared Jack’s indictment and taken his plea. In front of his table are the benches appropriated to attorneys, and, further on, the seats occupied by the gentlemen of the bar. On one side, to the right, is the jury-box, and opposite this the witness-box. The dock faces the bench, beyond the bar-seats. There, now, we are settled.”
“Grace! have you instructed counsel for the prosecution?”
“Yes,” was the reply; “you were only a magistrate just now, and have promoted yourself into a judge. I have called myself to the bar, and shall prosecute Jack. Behold, and tremble!” And the winsome one bound a lace handkerchief over her bonnie tresses to imitate a wig, and sate down upon the chair indicated by Charley as the Bar seat.
“Am I to have any counsel?” demanded Jack.
“Time was,” replied Charley, “when you would not have been allowed one, and your witnesses would not have been examined upon oath on your trial. You fare better now. If you have 1l. 3s. 6d., or if your vile associates can scrape together for you that sum, you may give it to any barrister present (one guinea for himself, and half-a-crown for his clerk), and ask him to defend you.”
“But suppose he won’t.”
“The rules of his profession do not allow him to refuse a brief, accompanied by such a fee as I have named, if handed to him by a prisoner from the dock.”
“I thought barristers only took briefs from regular attorneys,” remarked Fanny.
“That is the general rule; but there exists an exception in favour of wretched criminals like Jack.”
“But supposing I have not even that much in the world?” asked Jack, playing with the massive gold pendants from his watch-chain.
“If you are to be tried for murder, the judge will perhaps assign you an advocate; but in all cases he will see that you have fair play.”
“All right, then—go on.”
“Very well,” said Charley. “Attend now to what the clerk of the Crown is going to say. About a dozen other persons who have pleaded ‘Not guilty,’ are placed in the dock with you, and you are all thus addressed: ‘Prisoners at the bar! these good men that you shall now hear called, and who will attend, are the jurors who are to pass between our Sovereign Lady the Queen and you upon your respective trials. If, therefore, you or any of you will challenge them, or any of them, you must challenge them as they come to the book to be sworn—before they are sworn—and you shall be heard.’”
“I remember hearing that,” said Grace. “But why do they swear the jurors one by one!”
“To give the prisoner the opportunity of seeing the faces, as well as of hearing the names, of the men who are to try him, in order that he may object to any whom he may suppose to be prejudiced against him. If he please, he may challenge the whole number summoned by the sheriff. This is called a ‘challenge to the array;’ objections to single jurymen are called, ‘challenges to the polls.’ These latter are of two kinds—peremptory challenges, when no reason is given, and challenges for cause. Jack, being an ordinary felon, is allowed twenty ‘peremptory challenges;’ were he upon his trial for high treason, unless indeed he had compassed the Queen’s death, he would have twenty-five.”
“I suppose I may make as many challenges for cause as I can establish?” demanded Jack.
“Yes; that is the case.”
“And suppose,” asked Grace, “that I see some friends of his on the jury, may not I, as counsel for the Crown, object to them?”
“You may. You may challenge, without showing any cause, until the panel has been gone through, and it appears that there will not be jurors enough to try the prisoner, and then he is bound to show all his causes of challenge before you can be called upon to give reasons for yours. Well, we will suppose that twelve jurors have ​been sworn, and counted by the Crier of the Court, who then makes the following proclamation:
“‘Oh yes! Oh yes! Oh yes!’ (a corruption of the French word ‘Oyez,’ ‘hear.’) ‘If any one can inform my Lords—the Queen’s Justices—the Queen’s Attorney-General, or the Queen’s Serjeant ere this Inquest taken between Our Sovereign Lady the Queen, and the prisoners at the bar, of any treason, murder, felony, or misdemeanour, committed or done by them, or any of them, let him come forth, and he shall be heard—for the prisoners stand at the bar upon their deliverance, and all persons bound by recognisance to prosecute and give evidence, let them come forth, prosecute, and give evidence, or they shall forfeit their recognisances.—God Save the Queen.’
“The prisoners are then removed back again into the cells under the dock, all except Jack, who stands first for trial, and is ‘given in charge’ to the jury by the Clerk of Arraigns. The old form commenced by the clerk turning to the jury, and saying, ‘Jury, look upon your prisoner,’ and then to the prisoner, saying, ‘Prisoner, look upon your jury.’”
“What bosh!” exclaimed Jack.
“Should you like to be present at your trial?” asked Charley.
“Of course—I’ve a right to be.”
“Why?”
“Because I have.”
“A very excellent argument; but the lawyers have a better one contained in the form you call ‘bosh.’ How can the jury look upon the prisoner unless he is before them?”
“The clerk then tells them shortly what the indictment charges against the prisoner—that he has been arraigned—that he has pleaded ‘Not guilty,’ and that therefore their charge is to hearken to the evidence, and to say whether he be ‘Guilty,’ or ‘Not guilty.’ This done, his trial commences in earnest, and Grace will be good enough to begin.”
“Begin what?”
“Why, your opening address to the jury, to be sure. How are they to know what you are driving at in your questions to the witnesses, unless you give them a sketch of the case at the commencement?”
“Am I to invent a charge?” asked Grace, with a little puzzled smile.
“Lovely but unprincipled party—no! As judge,” said Charley, “I have the depositions taken by you (when you were magistrate’s clerk) before me, and you must abide by them. It appears, from what is sworn to in them, that this prosecutor was walking home, after having been to a dinner-party, and that, strange to say, he was quite sober. He was crossing St. James’s Park, when suddenly a man sprang upon him from behind, seized him by the throat, and, bending him backwards, snatched his watch from his pocket, and ran away—”
“The ruffian was Jack.”
“Of course, but how are we to prove this?” inquired Charley. “The prosecutor could not see his assailant.”
“Ask him,” said Grace. “Jack, have you the hardihood to deny that it was you who—”
“Stop!” interposed the judge; “it is my duty, Jack, to inform you that you are not bound to criminate yourself.”
“Then I shan’t,” replied the prisoner at the bar, composing himself comfortably upon the cushions of his settee. “Cut along, I defy you to prove that I stole the watch.”
“Wait awhile,” continued Charley. “Our prosecutor gave information to the police, and diligent search was made to discover the thief, but without avail—Jack was too sharp for them. At last, about a year afterwards, this advertisement appeared in the ‘Times:’
LOST.—A GOLD HUNTING-WATCH, by Dent, London, No. 13,240. The Dial is slightly defaced at the Hours 9, 10, 11.
In this description our prosecutor instantly recognises his lost property, and having called at the address given in the advertisement, finds a respectable elderly gentleman seated at breakfast.
“‘You have advertised for a lost watch, I believe, sir?’ says the prosecutor.
“‘I did, sir,’ replies the elderly gentleman, ‘and am happy to say that it was this morning restored to me.’
“‘I am glad to hear that,’ rejoins our prosecutor, ‘because the watch is mine.’
“‘Yours?’ exclaims the R. E. G.
“‘Mine!’ reiterates our prosecutor.
“The respectable elderly gentleman then explained that he purchased the watch from a pawnbroker in Birmingham. The services of the police were again invoked. The pawnbroker remembered that the watch was pledged by Mrs. Jones, of Little Dandelion Court, Paradise Buildings, and Mrs. Jones asserts that it was given to her to raise money upon by Mrs. Jack, who was lodging with her at the time, and owed her some weeks’ rent—”
“Oh, Jack, Jack!” exclaimed Mabel, severely, “so you have a wife in Little Dandelion Court, have you, unknown to your family?—but go on.”
“Mrs. Jones also says that she can recollect a parcel arriving by post, addressed to Mrs. Jack, containing the watch and a letter, which Mrs. Jack, being like her husband, an illiterate person, was unable to make head or tail of, and asked her, Mrs. Jones, to read. That as nearly as she could tell, it was to the effect that Jack had no ‘ochre’ to give her, but sent a ‘ticker,’ which though ‘muzzy’ about the dial, would fetch a ‘flimsy’ at her ‘uncle’s.’ That at Mrs. Jack’s request she let her daughter take the watch to that ‘relative,’ who advanced her four pounds ten upon it, and that she also wrote to Jack for his wife, acknowledging the receipt of his delicate little attention. Now do you think you can go on by yourself, and convict Jack upon this evidence?”
“Of course,” replied Grace, “it is quite plain, now. I shall first call the prosecutor.”
“Well! call him.”
Winsome Grace rose, drew her gauze scarf over her shoulders with a jerk, in imitation of a learned counsel, whom she had observed in the morning, and called me.
“Now tell me,” she said, “when you were going home that night, did a man spring out on you?”
​“Stop—stop—stop,” vociferated the judge, shutting his ears with horror, “that’s a leading question.”
“What’s a leading question?”
“One which leads the mind of the witness to the answer you want from him.”
“But I must ask him, if Jack seized him by the neck,” pleaded Grace.
“Indeed you must not,” replied Mr. Justice Davis. “In the first place, you have no right to assume that it was Jack just yet; and in the second, you must not lead. Ask him to tell what happened.”
“Well! what happened?”
I replied that a man had seized me by the throat, &c., &c., &c., as narrated by Charley.
“And was yours a gold hunting-watch, made by Dent?” continued the fair counsel, “and num—I mean, what was your watch like? Is that right?”
This last question was addressed to Charley.
“It is not usual,” he replied, “for learned counsel to ask the judge if ‘that’s right,’ but the question was a proper one. Suppose it answered. Who is your next witness?”
“Mrs. Jack.”
“You cannot call her. She is the prisoner’s wife; or, what comes to the same thing in criminal proceedings, she is ostensibly such. Our law refuses to hear the husband or wife of the accused, as a witness for or against him or her.”
“What am I to do, then!” said Grace, with a puzzled look. “Of course I must prove that Jack had the watch once.”
“Mrs. Jones can prove that a watch arrived at Birmingham from somebody.”
“Exactly: but that does not inculpate Jack.”
“Of course not,” interrupted that criminal, insolently. “I am not responsible for what any fellow may send my missus in my absence. Cut along!”
“It is not usual,” said Charley, with mock gravity, “for the prisoner at the bar to tell the court to ‘cut along.’ But to continue our proofs. Mrs. Jones writes a letter to this somebody. You trace it through the post to Jack.”
“Ha! ha!” exclaimed Grace. “Now we have him!”
“Deuce a bit!” exclaims Jack. “Am I to be found guilty, because some old woman at Birmingham chooses to send me a letter, acknowledging the receipt of a watch which I never sent?”
“But when we find you trying to sell the pawn-ticket of the watch, which was inclosed in that letter, and discover that you must have been in possession of the stolen property almost immediately after it had been stolen, your chances begin to assume an icthyological aspect,” observed the learned judge.
“Now I see exactly what I shall do,” said Grace. “I shall ask Mrs. Jones what was written on the pawn-ticket, to show that the one she sent to Jack was the same he tried to sell.”
“Oh dear me,” replied Charley, “that won’t do at all. When anything is in writing, you must produce the writing itself. Words fade from the memory; writings remain unaltered, says our law. You must produce the pawn-ticket.”
“Jack!” said the counsel for the prosecution, “Just hand over the pawn-ticket.”
“I’m sure I shall do no such thing,” responded the prisoner. “I’m not going to help you to convict me.”
“Very well, then,” said Charley, “you have done quite right, Grace. You have traced the ticket into his possession, and have given him notice to produce it. You should have given it in writing some days ago; but never mind. He has refused to produce the document; therefore you may now ask Mrs. Jones the question you proposed. In legal language, ‘give secondary evidence of it.’ Her story is told. Now go on. Whom do you call?”
“The pawnbroker who sold the watch to your respectable elderly gentleman.”
“But you have not got the watch into his shop yet.”
“Oh yes, I have. Mrs. Jones sent her daughter with it.”
“How are the jury to know that the watch sent by Jack, was the same watch that Miss Jones pawned—or that she pawned the watch at all?”
“Oh, I shall prove all that,” said Grace. “But how?”
“Why, you stupid thing, by asking Mrs. Jones what her daughter told her when she came back.”
“Yes, but you cannot ask people what other people tell them; that is hearsay evidence and inadmissible.”
“What nonsense!”
“Indeed,” said Charley, “it is not nonsense. Every witness must speak from his own knowledge; else how is it possible to test the value of his evidence. You must call Miss Jones; and when you have shown that she deposited the watch with the pawnbroker, and received from him a ticket, which she gave to her mother, who forwarded it to Jack—and when you call the postman to prove that he delivered a letter, with a Birmingham postmark, to Jack in London, in due course, and that the parcel containing the watch was despatched from London the day after the robbery, and have proved that the handwriting on it is Jack’s, and the prosecutor has identified the watch,—then you may tell the jury, that as the prisoner was in possession of the stolen property almost immediately after it had been stolen, that they may, if it so please them, conclude that Jack is the thief, unless he can give some reasonable account of how he came by it. Perhaps you will admit now that a prosecution is not the simple affair that you supposed it to be. Now, Jack, for your defence.”
“I shall give a reasonable account of how I came possessed of this fellow’s trumpery watch. I shall prove——”
“Take care what you are about,” said Charley. “If you call witnesses, Grace may make a speech in reply, and so will have the last word with the jury.”
“I don’t care. The watch was sold to me by two men——”
“Take my advice, Jack,” said the learned judge, “and make it one.”
“Why?”
​“Because, if you have two, Grace will have them ordered out of court, and cross-examine them separately. Their accounts—false ones, of course—will agree in the main incidents; but when Grace enters into particulars, and asks where you were standing when you bought it, what sort of money you paid for it, where they got it——”
“Oh! they found it.”
“Exactly; that will not be the most probable part of your case. People constantly find watches in the street! In other minor particulars your witnesses will differ hopelessly, and break down.”
“I see I am to be convicted,” said Jack, mournfully. “Get it over.”
Charley then summed up the case to the suppositional jury, with great solemnity, in these words: “Gentlemen of the jury,—If you think that the prisoner really committed the crime charged against him, you will find him guilty; and if you think that he did not, you will acquit him;”—a direction which enabled them at once to dispose of the mass of evidence before them, and to find the prisoner “Guilty.”
“I now as judge,” said Charley, “order the Clerk of the Court to call upon the prisoner, which he does in these words: ‘John Wardleur, you have been convicted of highway robbery; what have you to say why the court should not proceed to pass sentence upon you according to law?’”
“I’ve said all I’ve to say. What’s the use of bothering?” replied the criminal.
“You are not now called upon to make any defence upon the facts of the case, but to answer whether you have to complain of any error upon the record. For example: suppose you are indicted for burglary, and the jury find you guilty of murder; that verdict would show a palpable error in the record. You can find no error in the record, oh, miserable Jack! The sentence of the court upon you is, that you proceed forthwith to your room, and select from your case four of the very best Manilla cigars that you possess, and that you present them to your prosecutor and myself in the hall, where you will find us putting on our coats. But remember this, Jack, that you have been guilty of felony; and should you repeat your offence, this conviction will be charged against you in your indictment.”
“To show how infamous a character you are, Jack,” added Grace.
“Not so,” replied Charley, “for no mention will be made of it until you have been again proved guilty, and then, being proved, it will go in aggravation of punishment.”
Here we wished them all good night, and went home to our lodgings, consoled by Jack’s cigars, which I am bound to acknowledge were capital.