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salient features curiously foreshadows by forty years the great Ardlamont mystery of 1893. Each was one of purely circum- stantial evidence, resulting in the failure of either side to obtain a decisive verdict. The manner of death, the alleged motive, the means, the opportunity, and the inferences of guilt sought to be drawn from the accused's conduct, together with the character of the defence, present many points in common. Both arose from the death of a young man, unquestionably caused by a shot-wound in the head, the prosecution alleging that he was killed by the hand of a trusted friend, the defence contending that he died by his own act. In each case the accused had effected certain insurances upon the life of the deceased shortly before his death, while the position of the body when first found was equally important in determining the question at issue. Both prisoners were defended by the leading counsel of their day; at each trial the judge plainly indicated to the jury that in his opinion the Crown had failed to prove its case; and, finally, the respective juries delivered that am- biguous and indefensible verdict, peculiar to Scottish practice-- "Not Proven." The scene of the tragedy was the village of St. Fergus, situated in a remote corner of Aberdeenshire, five miles north- west of Peterhead, and the protagonists were William Smith, the local doctor, and a young farmer named William M'Donald. The latter lived with his widowed mother, his brother, and his sister at their farm of Burnside, about two miles from Kirk- town of St. Fergus. Dr. Smith, a married man, resided in the village and owned certain fields in its neighbourhood. Despite the differences in their social position, the two had been for long upon terms of intimacy, and M'Donald, who held the highest opinion of the doctor's ability, appears to have been completely under his influence. Dr. Smith had attended the family pro- fessionally for about eight years. M'Donald, for one of his class, was in comfortable circumstances. He farmed his mother's land, and was engaged to a girl named Mary Slessor, who lived at Hill of Mintlaw. They were to marry so soon as he could get a suitable farm, for which he was on the outlook, and they were willing to wait--"waiting cheer- fully," as she herself declared. He was of steady and sober habits, kindly, cheerful, and industrious, a regular reader of his Bible. He had no cares or worries whatever, his health was sound, and he was on the best of terms with his family and neighbours. In these circumstances, on Saturday, 19th November 1853, having been at work all day upon the farm, William M'Donald left home in the "gloamin'," between four and five o'clock, for St. Fergus. He had three trysts before him, two of which he did not live to keep. He was to see his betrothed at Mintlaw market in a few days' time, and on the following Tuesday he and his brother Charles, who had left home that morning to go to service, were to meet at Peterhead. The third tryst was with Dr. Smith on the evening in question, at his stable door in the village, at six o'clock. Kirktown of St. Fergus consisted of a short street run- ning east and west, with small houses on either side. Behind those on the north ran a parallel road called the Back-dyke- road, from the west end of which a footpath went out over the fields in the direction of Burnside. At the east end of the street were the church and manse, near which, at the junction of a road leading from the main street across the back road to Netherhill on the north, stood the house and offices of Dr. Smith. On the south side of the street, at the opposite corner, between the doctor's house and the church, 
PLAN OF KIRKTOWN
OF ST. FERGUS
From the original prepared for the Trial was the shop of James Smith, the village cartwright. On this Saturday night the shop was lighted, and the windows were unshuttered. About seven o'clock William M'Donald came in and gave the wright an order for some "hames " (harness) to be made, also for a grub-barrow for turnip land, and said he would be needing some palings for the farm. He was in his usual health and spirits, and was quite sober. He remained in the shop talking to some friends for about half an hour, and remarked that he was then on his way home. "It's getting late," said he; "I have need to be away"; and he left shortly before half-past seven. There- after, but for the disputable testimony of one witness, he was seen no more alive. All night long the family at Burnside anxiously awaited his return, and next morning, Sunday, the 20th, his young brother Robert went out to look for him. He took the by- way through the fields to St. Fergus. Near the village the path crossed a six-acre field belonging to Dr. Smith. It was bounded on the west by a ditch, having a bank on the east and a hedge on the west side, through a "slap" (opening) in which the pathway lay. On arriving at this point, the lad was horrified to find the dead body of his brother lying in about an inch of water at the bottom of the ditch. There was a bullet-wound in the right cheek, and the face was blackened with gunpowder. The boy lifted the head clear of the water on to the bank, and, looking about, saw a pistol on the east side of the ditch, four feet from where the head had lain. He then ran to the village for the doctor. Dr. Smith was out, so the boy left a message for him and returned at once to the spot. While he was standing there, "greetin'," beside his dead brother, he saw the doctor and James Pirie, the farrier, approaching from the main road. Dr. Smith came first. On seeing the body he held up his hands and exclaimed, "God preserve us!" He stood looking down at it, but made no further examination, and, picking up the pistol, remarked, "That's the thing that's done it." He expressed the opinion that the deceased "was partly shot and partly drowned," and that the wound had been caused by a wad only, not by a bullet. The body was then carried to the nearest house, that of James Fordyce, at the corner of the field, on the main road, whence it was taken in a cart to Burnside. M'Donald, when he met his death, was wearing a kind of jacket known as a "polka," the pockets of which, as was afterwards proved, were too small to contain the pistol. At Fordyce's house his pockets were searched for powder and shot, without result; nothing but his watch and snuff-box was found. He never carried money. Dr. Smith proceeded to Burnside to break the news to the bereaved mother. On the way he met Mr. Moir, the Free Church minister, who, being informed by Smith that M'Donald "had shot himself last night," accompanied him on his sad errand. The doctor told Mrs. M'Donald that her son "had done it himself," and that he was "suffocated or drowned." The mother refused to believe that he had shot himself, either accidentally or by design, as to her knowledge her son never had a pistol. She asked the doctor if he had seen William, according to their tryst, on the previous evening, but he denied that he had done so, or that there was any arrangement between them to meet that night. Dr. Smith certified the death as follows:- ST. FERGUS,
20th
November 1853.
I do hereby certify, on soul and
conscience, that I was called
upon this morning about half-past 9 o'clock, by Robert M'Donald, to see his brother William, who was found in a field near St. Fergus, and who had received a shot from a pistol in the right cheek, taking an upward and backward direction. There was a small quantity of blood coming front the ear and nostrils, the face completely covered with powder, so that the pistol must have been close to him, and from the direction it takes, I infer it is not likely to have been done by any other than deceased. W. SMITH, M.R.C.S.L.
The doctor took entire charge of the funeral arrangements, first suggesting Tuesday, which was afterwards changed to Wednesday. He remarked to the mother, "If Boyd heard what had happened, he would be out"--i.e. Mr. Boyd, the procurator-fiscal, would come from Peterhead to make in- quiries into the circumstances of the death. The fiscal did in fact arrive in the forenoon of Monday, the 21st, and com- menced his investigation, and at his request two medical men examined the locus, made a post-mortem examination of the body, and prepared a report. As the result of these proceedings Dr. Smith was arrested next day for the murder of William M'Donald, and was taken to Peterhead. There he emitted, in presence of the Sheriff, three several declara- tions, dated respectively 23rd and 24th November and 1st December 1853, and was committed to prison to await his trial. The accused was originally indicted for 13th March 1854, upon which date the trial began before the High Court of Justiciary at Edinburgh; but on the second day of the pro- ceedings a juryman, who had been overcome by mental excite- ment, was certified by Dr. Douglas Maclagan as unfit to continue his duties. The jury was therefore discharged, and the diet continued, the accused being taken back to prison. He was there cited upon criminal letters for his second trial, the pro- ceedings in which occupied the 12th, 13th, and 14th of April 1854. The judges present were the Lord Justice-Clerk (Hope), who three years later presided at the trial of Madeleine Smith, and Lords Cowan and Handyside. On this occasion the Lord Advocate (Moncreiff), who had personally represented the Crown at the first trial, did not attend, and the prosecution was conducted by the Solicitor-General (Crawfurd), afterwards Lord Ardmillan, with Messrs. Thomas Cleghorn and Andrew (later Lord) Rutherfurd Clark, Advocates-Depute. The Dean of Faculty (Inglis), afterwards the great Lord President, and Mr. George Young, later the eminent and witty judge, appeared for the defence. The same distinguished counsel also success- fully defended Madeleine Smith in 1857. It was, of course, essential to the charge against the prisoner that there should be proof of what, in Scots law, is termed the corpus delicti, that this was a case of murder and not of accident or of suicide. The ditch was eighteen inches deep, three feet broad at the top, and from one and a half to two feet at the bottom. There was longish grass and decayed matter at the bottom of the ditch, and also about an inch of stagnant water. The hedge on the west side was five feet above the bottom of the ditch. The surrounding ground was hard and dry, and presented no appearance of any struggle having taken place. When first discovered by the boy, Robert M'Donald, the body was lying below the hedge, extended to its full length in the water at the bottom of the ditch. It lay with the head to the south, and slightly on its left side by reason of the narrowness of the ditch. The left arm was bent underneath the body, the right was partly across it. The face was turned towards the hedge, with the wound uppermost. The body was fully clothed except for the hat, which lay in the ditch. Dr. Cowrie, Peterhead, and Dr. Cordon, a retired naval surgeon from the neighbouring hamlet of New St. Fergus, who conducted the post-mortem examination and prepared a joint report, on visit- ing the spot on the Tuesday after the death saw the impression of the body quite distinctly in the bottom of the ditch. It corresponded with the description given by Robert M'Donald Outside the ditch, on the west bank, to the left of the body they observed a mark of blood. The medical report stated that the doctors found on the right cheek of the deceased a circular, blackened, ragged wound with inverted edges, as if produced by a pistol ball, situated below the promontory of the cheek, midway between the tip of the nose and the ear. The skin around it, the eyelids, and the side of the nose were scorched and blackened by gunpowder. On tracing the course of the wound, the direction of which was obliquely upwards and backwards towards the left side, they found a pistol bullet lodged in one of the convolutions in the middle lobe of the left hemisphere of the brain. They were of opinion that the death was caused by the injuries dis- covered in the brain, and that the same had been inflicted by a pistol-shot discharged at a very short distance from the cheek. Dr. Cowrie in his evidence stated that the deceased was not suffocated or drowned. Death must have been instan- taneous, and the man could not have moved. The pistol must have been fired only a few inches from the head--three to twelve. If shot by another, that other must have been at his side. The position in which the body lay was a very remark- able one. If he fell dead and no one touched the body, it could not take the position of the impression. The witness could not account for it, whether the man shot himself or was shot by another, if he were shot outside the ditch. If he shot himself he must have been sitting in the ditch, if he did not his body must have been placed in that position by another; he could not have moved into it himself. All the probabilities were against his assuming that position if he were shot outside the ditch. If he fell outside the ditch it would be a matter of a few seconds for anyone to put him into it in that position. It was, said witness, inconceivable that the wound could be caused by accident. He was unable to form an opinion whether the shot was fired by the deceased or by another; he had no materials satisfactory to his mind upon which to arrive at a conclusion. Dr. Gordon concurred with Dr. Cowrie as to the medical report. He thought the pistol must have been close to the face--twelve to thirteen inches. He had made experiments upon which he based that opinion. In a case of suicide he would expect the distance to be less, and he considered it remarkable that the pistol should have been pointed a little above the gums instead of at the ear or temple. If the deceased shot himself he must have lain down in the .ditch do so; if shot by another his body must have been afterwards placed in position. He could not so fall if shot standing. If he shot himself in the ditch witness could not account for the blood on the bank beyond. From the appearances witness could form no opinion as to whether deceased was shot by himself or by another, but from his personal knowledge of M'Donald, with whom in life he was well acquainted, he could not believe that it was a case of suicide. Such being the only medical testimony bearing upon the question of the death, we shall now notice the evidence as to the motive by which, according to the theory of the Crown, Dr. Smith was actuated in shooting his friend. The life of this young man, William M'Donald, was insured with three separate insurance companies for no less a sum than £2000, in each case in favour of .Dr. Smith. The policies in force at the time of the death were as follows :--£500 with the Scottish Union Insurance Company for five years, commencing 9th January 1852 ; £500 with the Northern Insurance Company for five years, the last premium on which was paid by Dr. Smith on 18th November 1853, the day before the death ; and £1000 with the Caledonian Insurance Company for one year only, the risk on which began on 24th November 1852, and ended on 24th November 1853, five days after the death of M'Donald. All the proposals were made by Dr. Smith himself, who stated his insurable interest in M'Donald's life as "dependent on the life of a third party from whom he [Smith] expected double the amount proposed to be insured." Each policy contained a condition that it would not be vitiated in the event of suicide if assigned to a third party for onerous causes, or where the life insured was that of another person. At the request of the companies Dr. Smith sent M'Donald to their agents at Peterhead to be medically examined. The agents stated that the young man understood nothing as to the insurances, and appeared to take no interest in the matter. On one of them expressing astonishment at this ignorance and indifference, M'Donald replied, " The doctor's a fine chiel', and I have always done as he bade me." The life was accepted, and the policies were duly issued to Dr. Smith, who paid the premiums. It appeared from the evidence of Mary Slessor, the girl to whom M'Donald was engaged, that he had told her he expected to "get something off the insurance" from Dr. Smith, but that he did not seem to understand the nature of the transaction. The mystery attending this matter of the insurances was not dispelled by the defence. William Milne, a brother of Mrs. M'Donald, had died on 20th December 1852. There was some evidence that M'Donald had expected to succeed to his uncle's farm, and was disappointed at its being left to his cousin Charles. The latter, who, along with Dr. Smith, was one of Milne's executors, had never heard of the insurances. The prisoner at his first examination before the Sheriff declared that he had not effected any insurance on the life of M'Donald, but that Milne had done so, and had given him the money to pay the premiums. He was not sure if he had the policies, was unaware of their terms, and did not know they were pay- able to him in the event of M'Donald's death. He expected nothing would be recovered from them, as M'Donald had committed suicide. He had no writing from Milne about these insurances, nor could he say what interest Milne had in effect- ing them. He had an account against Milne for £46 for professional attendance, and the money for the premiums was a present from Milne (apparently a set-off against this account). The defence produced no evidence in support of this remarkable statement, and no attempt was made to prove that Milne even knew anything about the existence of the policies. With reference to the doctor's ignorance thereof, as alleged in his declaration, James Greig, a friend of his and a local farmer, had been examined by the procurator-fiscal at the inquiry after the death. He told Dr. Smith that the fiscal had asked about insurances, and Smith then admitted that these existed and were in his own favour, adding that he expected to get £1500 or £1000 from them. Whereupon Greig, with untimely humour, remarked: "They'll blame you for pistolling M'Donald!" and Smith said that he had no doubt he would be made a prisoner. This conversation took place on the day of his arrest. The only other point of importance in connection with this matter is the fact that Dr. Smith, aware from the conditions of the policies that if he could show no pecuniary interest in M'Donald's life, his claim might be resisted as being of the nature of a wager or gambling transaction, had prepared so lately as 14th November a declaration, signed by M'Donald and himself, to the effect that there was no wager of any kind between them. This document, together with the three life policies, was found in the doctor's repositories after his apprehension. The evidence regarding the weapon with which the fatal shot was fired has next to be considered. It was proved that the bullet lodged in the brain fitted the pistol found beside the body. The relatives of William M'Donald all positively swore that to their knowledge he never had a pistol in his life, and certainly no ammunition was found in his possession, nor was there any evidence that he had ever bought any. In his first declaration of 23rd November the prisoner denied that he had seen the pistol until the Sunday morning after the death, and stated that he had only the remains of an old pistol at home, which he had broken four months before, also that he had neither gunpowder, moulds, nor bullets in his possession. That day, however, the police had found in his house a pistol with a broken trigger, a pistol key, and a packet of gunpowder. They also ascertained that in the end of the previous August he had bought a second pistol in a shop in Peterhead, paying 4s. 6d., which price included a mould and key ; that about the same time he purchased two dozen percussion-caps, and that two ounces of gunpowder had been bought by him at M'Leod's shop in the kirktown, "a little before dark" on the very day of the death. Questioned as to these matters on 24th November, the prisoner in his second declaration stated that he had bought a pistol two years before at Peterhead, and that it had been repaired by Murison, the village blacksmith. He also admitted the purchase of the gunpowder, which he had meant to use for ointment for a patient, Margaret Reid, for whom he had made up some a fortnight before. He denied, however, that he had opened the packet. Now all these statements were directly contradicted by the evidence. The Peterhead pistol was not the pistol repaired by Murison, who identified the one with the broken trigger, found by the police, as that repaired by him in July. The doctor was seen, a few weeks before M'Donald's death, practis- ing with a pistol in a park to the west of the village, and again, by a different witness, on 29th October, firing a pistol near his own stable door. It was therefore proved that the prisoner had possessed another pistol for which he did not account, and the defence made no attempt to show what had become of it. The Crown, on the other hand, alleged that this pistol was the fatal weapon, and a second pistol key, found on the prisoner when arrested, fitted it better than the broken pistol. The man who sold the pistol to the prisoner, however, could not say more than that it was one of the same class and of similar male, but he swore he did not sell the broken one. It was proved that the day before the death, the prisoner, in a shop at New St. Fergus, had made an unsuccessful attempt to purchase gunpowder, stating that he required it "to shoot crows." It was also proved that the ointment made up by the prisoner for Margaret Reid did not contain gun- powder, that the packet which he procured on the Saturday had been opened and the string of it cut, and whereas it contained two ounces when sold to him, the contents, when found, only weighed one ounce and three-quarters. The defence maintained that the packet had been burst by the procurator-fiscal during the search of the premises, and a small quantity of the powder--"not half a teaspoonful"--was proved to have been spilt at that time, but "the fiscal made a pinch of it, and put it back." Joseph Harkom, gunmaker, Edinburgh, deponed that the quantity required to fire the ball in question (which weighed a quarter of an ounce) from the pistol produced would only be about eight grains. It would not take more than the eighth part of a quarter of an ounce. All this looked bad for the doctor, but the surprise of the trial was the appearance in the box of the last witness in the case, Adam Gray, designed as "brother to the Provost of Peterhead," who told the following remarkable tale:--He was at one time an auctioneer in Peterhead, and knew the late William Milne intimately. On Friday, 15th September 1848, in Peterhead, William M'Donald introduced himself to him as Milne's nephew, and made an appointment to meet his uncle. M'Donald then said: "You pick up things at roups [auctions]; have you no gun that you could sell me ?" Gray asked, "Are you going to poach ?" and M'Donald replied that "it was to frighten rooks from the crops." Gray then sold him a "useless" pistol for 4s. 6d., which he now identified by a notch on the stock as the pistol found beside the body--" I believe it to be the same pistol which I sold to M'Donald." In support of this statement he produced a small memorandum look, containing an entry of the transaction. Gray was rigorously cross-examined by the Solicitor- General. He admitted that on his examination regarding this matter before the Sheriff, he had stated that there was no mark, by which he could identify the pistol alleged by him to have been sold to M'Donald, anal that he had no note of the time of the sale. The book, witness said, was kept as he pleased. The first page bore entries of the dates 1843 and 1831, the second 1843 and 1827, and so forth. The pencil entry as to the pistol was made at the time in his office. Another entry, dated "September 1848," was, he admitted, written by him in Edinburgh that week. "Everyone keeps a jotter as he likes," explained the witness; "it may be a queer book, but it is true." The sale of the pistol was not recorded in his regular books, nor was an entry, which appeared in the jotter, relating to the purchase of a case of pistols by him in 1831. He had been convicted and fined five pounds a year or two ago, for firing a gun at a man who was trespassing upon his property. He had known Milne's nephews by sight from infancy, but "could not point them out now." He had not seen the deceased for two years. He was not related to the prisoner, but had known him for several years and believed him to be excellent man. Whatever weight may attach to the uncorroborated testi- mony even of a provost's brother, the crucial point of the case was the question of opportunity. The defence was virtually an alibi. M'Donald was last seen alive when he left the wright's shop shortly before half-past seven. The time when the shot which killed him had been fired was fixed within a minute by no less than five witnesses, who severally heard the report at twenty-five or six minutes to eight. Saturday was a busy night, and many of the villagers were out of doors. The church clock at the east end of the street was the criterion by which were regulated the individual timepieces of the inhabitants. They had the further advantage of a local bellman, who nightly performed the ceremony of curfew at eight o'clock. William Fraser, the celebrant in question, left his House, situated on the Netherhill road, a quarter of a mile north of the village, at two or three minutes after half-past seven. When forty or fifty yards from his own door, he saw a flash to the south-west and heard the report of a shot. After visit- ing the shops of M'Leod and of Smith, the wright, he went to the church and rang the bell. Alexander Norman, at his farm at Netherhill, half a mile off, was waiting, watch in land, "to supper his Horses." At twenty-six minutes to eight he heard a shot from the direction of James Fordyce's house. The three other witnesses heard the report at five minutes after the half-hour. How Dr. Smith spent certain momentous minutes between seven and eight o'clock that night was the matter of greatest contention between the prosecutor and the defence. It was admitted that about six o'clock the prisoner visited the manse, where he was not expected, although he had been professionally attending one of the servants, and that he remained there till five minutes to seven. Two Crown witnesses, Mr. and Mrs. M'Pherson, swore that they met him between the manse gate and his own house at ten or fifteen minutes past the hour, and recognised him by the light from the iinshuttered windows of the wright's shop at the street corner, in which, as will be remembered, M'Donald then was talking to his friends, and could be seen by anyone outside. In his declaration the prisoner said that he went home from the manse at seven, that five or ten minutes afterwards he went into his garden and brought in some flower roots which had been previously dug up, that he next walked about at the back of the house for some minutes, and then left to visit a patient, Isabella Anderson, at whose house he arrived at twenty- five minutes to eight, having observed the hour on her clock. We shall see later what Miss Anderson had to say to this. For the defence, Martha Cadger, the doctor's servant, said she let her master in between twenty-five minutes and half- past seven, that ten minutes after he went out by the backdoor to the offices, that she followed him there "to meat her pig," and saw him in the garden with a spade, that she did not see him again till he came home at nine, and that next morning (Sunday) she saw in the house some dahlia roots which she had not observed there on the Saturday. Eliza Park,his other servant, said that the doctor came in at half-past seven and went out again in ten minutes. The house clock, she admitted, was five or ten minutes fast. Some dahlias were brought in on the Sunday; she saw none on the Saturday. Alexander Duguid, who was in the kitchen that evening, said he left to go home at a quarter to eight. He heard the doctor's step in the passage about half-past seven. The evidence adduced by the Crown upon this point was as follows:--John Aden, labourer, Moss of Rora, who lived near the M'Donalds and knew William well, stated that he walked home from Peterhead on the night in question. He was passing through St. Fergus when, at eighteen or twenty minutes past seven, west of Widow Robertson's inn, he met M'Donald and Dr. Smith, whom he knew by sight, walking side by side and speaking to each other. He said that he recognised M'Donald's voice, and he accurately described his dress. The doctor was wearing a white hat (as was otherwise proved he did that night). In the course of a lengthy and searching cross-examina- tion by the Dean of Faculty it appeared that Aden, east of Robertson's inn, a few yards from where he met M'Donald and the prisoner, had asked a man the time. The latter struck a light and showed him that it was seven on his watch, which he said was half an hour fast. It was, therefore, in fact then half-past six. Aden could give no explanation of how he had come to say that he met the others a few yards further on at "eighteen or twenty minutes past seven." Although in hopeless confusion as to the hour, he stuck sturdily to his statement that he had seen M'Donald and Dr. Smith together that night. After being sharply interrogated by the Justice-Clerk, Aden was committed to prison for prevarication. In considering the evidence regarding the movements of the prisoner on the Saturday evening, the following facts should be kept in view :--According to the evidence of a land surveyor the distance from the doctor's house at the east end to the field at the west end of St. Fergus where the body was found was only five hundred yards, which the witness said he walked easily in three minutes and forty-five seconds; the houses of the several witnesses now to be mentioned were all situated in the main street between those two points; and it was in evidence that rain began to fall that even- ing at five minutes to eight, and continued) heavily for some time. Isabella Anderson sent out her servant, Christina Glavin, shortly before eight on a message to M'Leod's shop, practi- cally next door. The girl was five or six minutes in the shop, and met the belllman at the door as she went out. She returned home before the eight o'clock bell began to ring. During her absence Dr. Smith called on her mistress. When he came in he took up a candle to look at the clock, and drew Miss Anderson's attention to the time by it--twenty-five minutes to eight. He said heo was going to Pirie's and to Manson's. He only remained for about five minutes, and did not sit down. She saw nothing particular in his appearance. Now Miss Anderson swore that her clock was then a quarter of an hour slow, and that the actual time of his visit was ten minutes to eight. Mrs. Pirie deponed that the doctor came to her door about five minutes to eight. He only stayed two minutes, saying he had to see Mrs. Manson, who lived over the way, and would shortly return. He did so in about ten minutes. She heard the bell ring in the interval. It was beginning to rain when he was at the door the first time; it was very heavy before he came back. Her husband offered him his chair by the fire, but after taking it the doctor rose and took one "far back at a side." He remained a quarter of an hour and then left. Mrs. Manson said that the doctor paid her a visit about eight o'clock. She had been confined that day, but was not expecting to see him then. He remarked when he came in that it was raining. He, moved his chair behind her and sat down without taking off his hat; she thought he did not wish her to look: at him. He did not stay long. Thlat evening she said to her husband that she did not know what was the matter with Dr. Smith; he was wiping his face frequently; she thought his nose was bleeding. The arguments of counsel for and against the prisoner upon these facts will be noticed when we consider the addresses to the jury. The only evidence as yet unexamined is that whereby the crown sought to infer the prisoner's guilt from his conduct at and about the time of the death. It was disputed whether the message given by the boy Robert to the prisoner's wife after the discovery of the body, was such as to indicate precisely the locality of the accident. However that may be, Dr. Smith was proved to have been seen about eight o'clock that Sunday morning going up the Netherhill road and standing for some time looking westward, at the point nearest to his house from which was visible the field where the body lay. The evidence of P'irie, the farmer, who at his request went with him at half- past nine to find the body, showed that the doctor certainly knew where to look for it; yet in his declaration the prisoner expressly stated, "I had no information where the body was," and when questioned on the point by Mr. Moir, the Free Church minister, he said, "We did not know where to go." He stated to several persons that M'Donald's snuff-box had contained gunpowder, but none of the witnesses who examined it saw anything of the kind. On the Monday after the death Dr. Smith told Mr. Moir that M'Donald had shot himself "by design," because "there were quarrels in the family," the exist- ence of which was afterwards denied on oath by Mrs. M`Donald her daughter, and her sons. Mr. Moir said it was a great mystery, whic he would like to see better investigated, and remarked that it was a strange thing that anyone should have looked for the lad at a place so little frequented ; if some- one else had done it, he must have been dogged from the village. "I looked into his [Smith''s] face," said the minister, "and asked, `And where were you on Saturday night, doctor ?' " It is due to the prisoner to say that without hesitation he mentioned the manse, Anderson's, P'irie's, and Manson's, and that the minister, who possibly had his own suspicions, saw nothing peculiar in his manner. Charles M'Donald, hearing of his brother's death, returned home on the Sunday and had a conversation with Dr. Smith. The latter said that William had been in low spirits of late, and that he had seen him at Burnside sit "with his head hanging among his feet, and not speaking." Charles from his own knowledge denied this, as also did the other relatives; and indeed all the evidence proves that William M'Donald was hale and hearty to the last day of his life. Both Mrs. M'Donald and Robert saw Dr. Smith talking to William at the farm about two o'clock on the Saturday, and thereafter William told them that he had promised the doctor to meet him at his (Smith's) stable door that evening about six, "to see a large printed paper he had never seen before." Mrs. M'Donald also swore that on the previous Monday she and William, being at Peterhead, met the doctor, who gave William a document resembling "the wager paper," which he was to sign and return to Smith the following night. The prisoner in his third declaration denied that this incident occurred, but the document itself bore to be signed by him and M'Donald that very day. From the first Mrs. M'Donald naturally refused to believe that her son had shot himself, and did not conceal her belief that he had met with foul play, but Dr. Smith "warned lher that she would get into trouble for the way she was speaking." She also swore that William told her he was in the habit of meeting the doctor at his stable door of an evening "at bell-ringing"--"a mark was on the door to show whether he was to meet hiin "--and that William said he ought not to have mentioned the fact, as Dr. Smith had forbidden him to tell anyone of their meetings. It was proved that on the Sunday Dr. Smith accompanied Hunter, the constable, who was making inquiries about the accident, to the house of Fraser, the belllman. The latter told them how he had heard the shot fired the night before. The doctor made no comment at that time, but returned later alone, and asked Fraser, "If it would not be a quarter from eight that he had heard the report?" When under arrest at Robertson's inn on the following Tuesday, the prisoner privately gave the landlady's daughter letters to deliver to his wife and James Greig, and asked her, in a whisper, to go and see if Miss Anderson could remember that he was in her house at twenty- five minutes to eight, "and all world be right." Miss Anderson, however, "would not depart from the truth." The prisoner in his letter to Greig wrote as follows:--"As I said--I would be a prisoner. Would you oblige me by asking, privately, at Mrs. M'Donald what she said to Mr. Boyd [the procurator-fiscal] to-day about me and William M'Donald, and abort any insur- ances? But this must be very private, as the whole thing may be revealed." We can only glance at the long and eloquent addresses of counsel to the jury. The speech of the Solicitor-General, while marked by strict fairness, marshalled with excellent effect the facts and circumstances which appeared upon the proof inconsistent with the prisoner's innocence. His argument, as reported, is more cogent and convincing than that of his great opponent, the learned Dean, who was stronger upon the moral improbabilities of the case than upon the proven facts. The Solicitor-General at the outset referred to the diffi- culties which had attended the investigation, owing to the isolated and rustic nature of the place and the ignorant and simple character of the local witnesses. He then gave an admirable exposition of the nature and importance of circum- stantial evidence. "It is impossible," said he, "that there can be direct evidence of secret crime, but circumstances in such a case may be viewed as the links scattered over a field of inquiry which, when gathered and put together, form a coherent and consistent chain by which you can be led up to the very door of Truth." He maintained that here there could be no question of accident, and that suicide, while possible, was in the circum- stances of the case highly improbable. The doctors could only account for the position of the body if M'Donald had shot himself sitting or lying in the ditch, or had been placed in it by another. Now, if he shot himself in the ditch, he was below the level of the surrounding ground; but Fraser, the bellman, actually saw the flash from a spot several hundred yards off, with more than one fence and some rising ground between, and at a point where he could not have seen a flash within the ditch. If M`Donald did not shoot himself it was done to look like it, both as to the manner of the shot, the line of fire, and the placing of the pistol beside the body, by "a deliberate, knowing, skilful, I was almost going to say surgical, hand." In dealing with the insurnces the Solicitor-General said that the effecting of these by the prisoner was not merely a motive, it was an important step in the perpetration of the crime, and could not be separated front the other facts. He pointed out the absence of any evidence of Milne's knowledge of the insur- ances, and characterised as "monstrous and incredible" the prisoner's story that Milne embarked in these transactions because he was unable to pay his doctor's bill. The prisoner had denied that he knew the terms of the policies or that they were in his own favour, yet he told Greig he expected to get £1500 or £1000 out of them, and the £1000 policy was within five days of expiry on the day of M'Donald's death. With regard to the weapon, the Solicitor-General referred to the fact that the prisoner was proved to have purchased a second pistol of which no account had even to that day been given, that he had bought gunpowder upon a false pretence of making it up into ointment, and that the quantity missing from the packet was sufficient to have charged the pistol eight times. It was proved that M'Donald was never known by any of the family to possess either a pistol or gunpowder. Upon this point he criticised severely the evidence of Gray, whose allegation of having sold the pistol to M'Donald he attributed to his zeal to serve a friend, and said that he (counsel) did not value his evidence a single rush, and he was satisfied that the jury would not believe it. On the question of opportunity the Solicitor- General observed that the shot was proved by five witnesses to have been fired at twenty-five or six minutes to eight. Till seven the prisoner was in the manse, till past seven M'Donald was in the wright's shop. Mrs. M'Pherson saw the prisoner near that shop (those within being visible from the outside) at ten or fifteen minutes past seven, but up to ten minutes to eight, when he visited Miss Anderson, the prisoner was unaccounted for. The jury must judge of the evidence of Aden that the two were seen by him together that night, which could not be true unless the time he named--eighteen or twenty minutes past seven --were nearly correct. It was proved that it would take less than five minutes to walk from the prisoner's house to where the body was found, so that he had ample time to commit the deed. Even upon the evidence of the witnesses for the defence, fourteen minutes elapsed between the prisoner leaving his house and the hearing of the shot, which was about three times as much as was required to reach the place. He contended that the evidence for the defence on this point had not shaken that given for the Crown. Then there was the visit of the prisoner to the bellman and the message he sent to Miss Anderson, whereby, "finding himself under the necessity of proving an alibi, he endeavoured to adjust the evidence as to time; to get the man forward and the woman back, so that the time of Fraser's hearing the shot and the time of the prisoner's visit to her might be brought as near as possible." They also had the prisoner's conversation with Greig and the letter which he wrote to him. All these acts were inconsistent with his innocence. The Solicitor-General concluded by saying he had satisfied the jury that M`Donald's death was not the result of accident or of suicide; that the prisoner had the most tremendous motive to wish him dead, and had shown that by that motive he was actuated; that he possessed the means; that he had the opportunity; and that the indications he gave of his mind all led to the conclusion that he was the guilty man. On the whole matter he believed he had good grounds for asking and expecting from the jury a verdict of guilty against the prisoner. The Dean of Faculty, in his address, expressed the greatest astonishment at the confidence displayed by his learned friend, as he had never seen a case in which a prosecutor was less entitled to adopt such a tone. It was a remarkable feature of the case that there did exist upon the part of the prisoner an interest or motive to commit this crime, but if there was no evidence of the commission of the crime, separately and independently of the motive, on which they could come to a sound and rational conclusion, the motive alone was by itself perfectly insufficient. The learned Dean then proceeded to walk delicately over the thorny ground of the insurances. He contended that if M'Donald under- stood very little about the matter it was his (counsel's) belief that the prisoner did not understand much more. However the insurances came to be effected, whether by Milne himself or by the prisoner at the instigation of canvassers, they began in 1852. The crime must therefore lave been projected and prepared in the mind of the prisoner from the very beginning of the insurance business. If so he must have been a wonderful man, continuing as he did in daily, friendly intercourse with his family and acquaintances, while "meditating one of the most fearful offences that had ever been brought under the cognizance of a court of justice." After drawing a graphic picture of the mental state of such a miscreant, "he ventured to say that such a thing never occurred before--it was beyond the dream of a romance writer." Eleven years later, however, the Dean of Faculty himself presided, as Lord Justice-Clerk, at the trial of Dr. Pritchard, whose character and conduct afforded a complete refutation of this argument. The first essential step in the prosecutor's case was the truth of the corpus delicti, which, the Dean submitted, it had failed to establish. He admitted that the circumstances of M'Donald rendered suicide exceedingly unlikely, but it was vain to say that antecedents were conclusive in such a case. Both the medical men said that there were no materials on which they could form an opinion. Was murder, then, proved? It was impossible to say so. It was a very remarkable thing that, while the death of M'Donald was caused by a pistol bullet, neither bullets nor mould were found in the prisoner's house. If he had put them out of the way "it was a very odd thing that he should not have disposed of the powder also." The learned Dean did not point out that it was at least equally remarkable that M'Donald had no ammunition what- ever in his possession, while the prisoner had been seen practising with the missing pistol on two occasions shortly before the death. Why, continued the Dean, should the prisoner, who had been maturing this crime for two years, have resorted to the noisy violence of shooting? "There were subtle and secret agents by which human life might be destroyed, of which any man in the medical profession had the most secure and perfect command." It must have been within the Dean's recollection that in 1849 Dr. Webster, Professor of Chemistry in Harvard University, a man of noted scientific attainments, decoyed his benefactor, Dr. Parkman, into his own laboratory in Boston Medical College, and there, "surrounded," like Mr. Venus, "by the trophies of his art," this chemical adept set upon and slew his unsuspect- ing visitor with a bludgeon. In regard to the purchase by the prisoner of a second pistol at Peterhead, the Dean complained that, when examined, he had not been asked what had become of it. It was all very well to say that he might have brought witnesses to speak to this, but there were some things incapable of proof. It was true that he had bought caps and gunpowder; these were just the scraps of which the case was made up. What did it matter whether the powder was bought on the Friday or the Saturday? It was as likely to have been bought on the former as on the latter day, if a murder were contemplated. He contended that the packet was burst by the fiscal when engaged in the search of the prisoner's house, and that it was by no means certain the box of ointment produced was that given to the girl Reid by Dr. Smith. The Dean maintained the credi- bility of Gray, and said that, on the assumption that he was worthy of belief, there was no proof that the pistol ever belonged to the prisoner, while they had direct evidence that it belonged to M'Donald. On the question of opportunity the Dean asked the jury to trust to something better than the time of clocks, namely the sequence of events. He said that if there was in fact a tryst between M'Donald and the prisoner for six o'clock, which he thought highly improbable, it was very certain that the doctor did not intend to keep it, for he visited the manse at six, and remained an hour. The Dean then exhaustively reviewed the evidence of the witnesses who spoke to the movements of the prisoner, and argued that he could not have committed the murder between his leaving home and his going to Miss Anderson, and that it was impossible that he could have been elsewhere than in her house when the shot was fired. With the exception of an absurd observation of Mrs. Manson, the prisoner when seen that night had none of the indicia of a murderer about him. As to the various instances of the prisoner's actions subsequent to the death, from which the Crown sought to infer his guilt, "these were not in the least wonderful points in the conduct of all innocent man, anxious to prove his innocence." The learned Dean concluded by saying that he had never seen a prosecution fail as that one had done and the Crown still ask for a verdict, and that on coming into Court that morning he had not expected to have been obliged to address the jury. He confidently asked a verdict which would completely clear the prisoner's character. It is interesting to note in passing the marked difference in tone between this speech and that delivered three years later by the same great advocate in defence of Madeleine Smith. The latter, an acknowledged model of forensic eloquence, contains passages so powerful in argument, so impassioned in rhetoric, as to take captive alike the reason and the imagination. The former, from whatever cause, presents no such attractive features. The Lord Justice-Clerk, in charging the jury, said if this were a case of murder, it was certainly the most atrocious one that was ever brought before that Court. At an early period of the trial, however, he had formed the impression that, unless there was more evidence brought than appeared likely, there was not enough to infer the guilt of the prisoner or to substantiate the fact that a murder had been committed. Since hearing the whole case that impression had been strengthened and confirmed. After the evidence of Gray, he thought it was necessary to call their attention to the question whether a murder had been committed at all? The doctors could not say whether the death was caused by violence or by suicide. The pistol purchased by Dr. Smith at Peterhead was only proved to be "like" that found beside the body, and there was not a single circumstance tending to prove that it was a murder and not suicide, except that pistol. If that pistol, therefore, was not proved to be the prisoner's, what single act had they in the case bringing liim into contact with M'Donald at all in the matter of his death? The motive might have existed, but from that they could not infer the commission of such ant act. The opportunity he might have had, but so had many other persons in the kirktown. The prisoner ought to have been asked as to the pistol bought by him at Peterhead ; that point was of ten times more importance than many of the circumstances on which he was examined. After the evidence of Gray, unless they believed that he had committed deliberate perjury, it was impossible any longer to hold that the pistol found near the body was the pistol of the prisoner. Unquestionably, in view of M'Donald's character and position, the moral evidence was all against the supposi- tion of suicide; but looking at all these facts, assuming that they did not think it was a case of suicide, it still remained a murder wholly unexplained, and not proven against the prisoner. As to Dr. Smith's false statements in his declara- tion about the insurances, these might be accounted for by those mistaken acts by which accused persons, whether innocent or guilty, sometimes endeavour to clear themselves. The whole case might be surrounded with suspicion and difficulties, but in the view he took of the case it came to be an unexplained murder, the evidence having failed to connect the crime with the prisoner at the bar. His lordship then asked the jury, whether they wished him to go over the evidence; and the jury, having intimated that they did not, then retired to consider their verdict. During their deliberations the unfortunate Aden, who had been committed for prevarication as already mentioned, was brought to the bar. The Justice-Clerk was of opinion that he had wilfully stated what he knew to be false, either from a desire to make himself of importance or to bring himself into the case. His lordship said his intention had been to pass sentence of six months' imprisonment, but as the other two judges thought Aden's behaviour was only due to stupidity, the Court would not inflict any punishment. He was accordingly discharged. With reference to this matter the Edinburgh Courant (18th April 1854) contained a paragraph to the effect that they had been requested to state that the Solicitor-General had seen and precognosced (examined) this witness himself before the trial, and that Aden had then told the story as to meeting Smith and M'Donald together about twenty minutes past seven substan- tially as he had repeated it in the witness-box. The conduct of Aden was probably due to confusion arising from the novelty of his position. The ,jury, after an absence of ten minutes, returned into Court with a verdict of "Not Proven, by a majority." The Justice-Clerk then put the somewhat unusual question whether their difference of opinion was between "Not Proven" and "Not Guilty," and received the unexpected reply that it was between "Guilty" and "Not Proven." The prisoner was accordingly dismissed from the bar. The failure of the prosecution to obtain a verdict was, like the acquittal of Madeleine Smith, largely due to the fact that the Crown did not prove to the satisfaction of the jury that the prisoner was in company with the deceased on the night in question. It was stated in the Scotsman (19th April 1854) that the division among the jury was eleven for "Not Proven" and four for "Guilty"; and that the prisoner, on being liberated, was not, as currently rumoured re-arrested upon another charge. The verdict would not appear to have been popular. It was received with hisses by a crowded court, and although the prisoner, for his own protection, was detained within the building for some time, when at length he was allowed to go he met with a hostile reception. He left the city that night, and so passes from the public view. We have the authority of the late Lord Moncreiff for the fact that, notwithstanding his acquittal by the jury, Dr. Smith did not succeed in obtaining payment of the policies of insur- ance. Actions were raised, but on the insurance companies defending them they were abandoned, and the policies lapsed. |
