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Would you have convicted?

I present a couple of cases from a century ago where there is little doubt about the guilt of the accused.

In the first a soldier finds out that his wife is having an affair while he is away. He shoots her dead.

In the second a soldier suffers shell shock and it sent home. He acts in an erratic and frequently violent manner. His wife kills their son and attempts to kill their daughter and herself.

In both cases the jury returns a verdict of “not guilty”.

26 comments to Would you have convicted?

  • Chris Cooper

    Couldn’t they have been convicted on lesser charges – which in Britain would I suppose have to have been manslaughter?

  • Alisa

    There isn’t enough information in either report on which to base an opinion.

  • Alsadius

    Yes, I would have convicted both. But the social mores that lead to acquittals in both cases do seem logical, even if I disagree with them – in an era where life was cheaper and divorce more expensive, the shotgun divorce in cases of abuse or infidelity looks more appealing.

    (These cases might be the best argument for divorce liberalization I’ve ever seen, though. So much better a process than driving your spouse to murder.)

  • Patrick, in the first case, the account indicates that the soldier (his lawyer, rather) presented a similar defence to that of the killer of Kate Steinle (arguably one with fewer flaws – he was claiming negligent discharge, he did not have to pretend he just found a stolen weapon, etc.). Obviously, he, like the Kate Steinle killer, had changed his story by the time he reached court, etc. – one feels the jury could not have had reasonable doubt.

    I would have convicted. I would perfectly understand the hurt caused by his wife’s infidelity, but England was for a long time not a society where such ‘honour killings’ were legal – it was such a society long before some on the European continent, let alone more distant ones – and I do not wish it to become so.

    Alsadius (December 17, 2017 at 12:40 pm), the soldier could easily have divorced his wife for infidelity under the laws of that time.

  • Patrick, in the second case, I do not see how the husband’s behaviour could explain the wife’s killing one child and attempting to kill another without the intervention of the wife’s being mentally disturbed. It seems to me, either there were aspects un-reported, or unclearly reported, in the brief newspaper account, or the verdict was perverse with respect to the evidence.

    Whether I would have convicted depends on what more (if anything) I could have heard in the courtroom that might explain the verdict.

  • Patrick, a point worth remembering in the first case is that the jury might have weighed the punishment of conviction, possibly followed by a life sentence instead of a death sentence because of the circumstances, against the ‘punishment’ of acquittal, followed by return to the trenches to face worse physical conditions than prison and great danger of death.

  • bobby b

    Impossible question to answer unless you see the exact same case and presentation that the jury saw.

    Who gave the newspaper writer the facts? What was left out? What did the jury know that we don’t? What do we know that the jury didn’t know?

    I have seen many stories of which I had personal knowledge written up in newspapers. I have never – not once – been impressed with the accuracy of the newspaper story. Given that, why would I expect newspapers to be accurate about stories of which I have no personal knowledge?

  • llamas

    From a long time ago, in a law school far, far away – I recall being taught several homicide cases in the UK during WW2 where servicemen pled that they did what they did because they had been trained in the arts of death and violence,and so they behaved as they had been trained. With varying degrees of success, but I do recall one squaddie who killed a man in a brawl outside a pub, using unarmed combat skills he had been taught as a Commando, who got sentenced to manslaughter using a version of this defence. I will have to look it up.



  • Jacob

    It seems that in general juries tend to hand down sentences based more on their attitude and emotional response, and less on the “dry” facts and legal statutes.
    I don’t know if that is a good thing or a bad thing.

  • Paul Marks

    There is, as Alisa says, a lack of information – but, on the face of it, the correct verdicts would have been GUILTY and GUILTY. However, the “extenuating circumstances” might will have been considered in relation to sentencing.

  • PersonFromPorlock

    December 17, 2017 at 5:25 pm

    It seems that in general juries tend to hand down sentences based more on their attitude and emotional response, and less on the “dry” facts and legal statutes.
    I don’t know if that is a good thing or a bad thing.

    Well, morality has to pull rank on government sometimes; otherwise, all we have is a mechanical process where if the government satisfies its self-defined procedural requirements, and says “round up the Jews”, we round up the Jews.

  • Alisa

    Yes PFP, but we are talking murder here.

  • Clovis Sangrail

    I thought this venue was pro the principle of (the possibility of) jury nullification?
    Not saying I’d have voted not guilty in either case but…

  • David

    “round up the Jews”, we round up the Jews.

    Resulting in one set of circumstances around six million counts of murder.

    Imperfect as it may be I would rather be tried by twelve of my peers than by a judge or panel of judges who, while most likely well versed in the law, may be well out of touch with the community and its attitudes.

  • Lee Moore

    Well, morality has to pull rank on government sometimes

    Exactly. I don’t know how I would have voted on these juries. Probably convict the soldier and acquit the wife, but it wouldn’t be based on legal considerations.

    However, one case where I do know how I would have voted, if it had come to trial, and if I’d been on the jury, is this.

    Once upon a time (in WW2) there was an Italian, recently married, who had to leave his village and go and fight. The mayor of the village fancied the wife (a loving, dutiful, faithful wife.) The mayor persuaded her that because of his influence with the higher ups, he could determine where her husband was posted. If she would be his mistress, her husband would live. If not, he’d die. The wife gave in and reluctantly became his mistress. When the soldier came home at the end of the war, the fact that she had been the mayor’s mistress could not be concealed. The village knew about it. The soldier, enraged, grabbed his shotgun off the wall and set off for the mayor’s house. His wife begged him to desist – why do you think I suffered all that ? So that when my husband came home we could have our life together. I didn’t suffer all that so that as soon as my husband came home, he would go straight to jail for the rest of his life. Promise me that you’ll not destroy our life together. Let him be.”

    And so he swallowed his anger and his pride, put his shotgun back on the wall and lived happily ever after with his wife. For forty years, until she died. He buried his wife, then took his shotgun from the wall, and went round and shot the guy.

    That’s not murder. That’s justice.

  • bobby b

    Incredibly rare and perfect stories get so much mileage for evil.

    Because anybody can find in those stories some strand of justice that works in their own narrative to justify their own evil.

  • Bruce

    Then, there’s the old adage:

    “I’d rather be tried by twelve than carried by six”.

  • Alisa

    That is quite a story, Lee. I probably would have acquitted too.

  • Laird

    I don’t know all the facts and circumstances, either, but these are clearly cases of jury nullification, of which I am a strong proponent. You Brits should be especially cognizant of it; to this day there is a statue in the Old Bailey commemorating “the courage and endurance” of the jurors who in 1670 acquitted William Penn of “preaching to an unlawful assembly” (Bushell’s Case) and were jailed and tortured by the angry judge.

    The whole purpose of juries is to protect the weak from an oppressive state; they exist not merely to decide questions of fact, but also to pass upon the inherent fairness of the law, either of itself or in its application. The idea that a jury’s only function is to decide the facts is a perversion of the concept. The jury serves to inject community values and standards into the administration of the laws, in other words, to promote justice. As Lysander Spooner wrote, “Unless such be the right and duty of jurors, it is plain that, instead of juries being a ‘palladium of liberty’ — a barrier against the tyranny and oppression of the government — they are really mere tools in its hands, for carrying into execution any injustice and oppression it may desire to have executed.

    I don’t know how I would have voted had I been on either jury. But I respect the decision of those who were. Clearly they had their reasons.

  • Patrick Crozier

    Interesting the number of different takes here. My reading of the case involving the soldier shooting his wife is that the jury was making a point: “do not cheat on men at the front”. In the second case I felt it was saying: “we understand”. Although, seeing as this woman remains married to this man I can’t imagine it’s going to be a lot of fun for her.

  • Mr Ed

    In the second case, the husband might not have testified against his wife. We do not know, but it remains the law that one spouse cannot be compelled (on pain of contempt) to testify against the other. Just a detail that we do not have in the understandably brief report. I also note that in the second case, it was an indictment from a coroner’s court, one of England’s oldest judicial offices and up to the 1930s, a coroner’s verdict of unlawful killing formed the indictment at the Assizes. Then the long process of watering down this ancient court began.

    In the first case, note how eloquent the letter from the common soldier was, and how calculated was the killing.

  • As no-one else has said it AFAICS, I’ll quote it.

    Hard cases make bad law.

  • Mr Ed

    Hard case expose bad law, they do not make it.

  • staghounds

    War is a rotten thing.

  • Maximo Macaroni

    “War is a rotten thing.”

    Perhaps, but losing a war is worse than winning it.

  • Paul Marks

    Legally there is the defence of not guilty by reason of insanity – there is also the concept of temporary insanity, the person being judged insane at the time they committed the act but to have got better afterwards.

    But that has always seemed a bit too neat to me – so I would be inclined to say……

    “You knew what you were doing – your killed this person, intending to kill them. Therefore you are guilty – but I will take account of the extenuating circumstances in the sentence”.

    “July Nulification” (which, like Laird, I support) was often deployed when there were absurd sentences for crimes. For example up to the 1820s many crimes the death sentence – so if it was known the their was a “hanging judge” the jury would just declare “not guilty” – better the injustice of letting a thief go, than the injustice of having a thief hanged by the neck till they were dead.

    So the statutes were changed – to bring them in line with common sense. Although that need not have meant prison – it could have meant (as it did in New York State before Governor Jay’s new prisons) a flogging.

    There is also the fact (with which, as a Common Law man, Laird will agree) that most modern “crimes” are not crimes at all – they are just mad statutes that declare that non crimes (such as doing business without a license or permit) are crimes.

    Not a new point – as it was made by Chief Justice Sir Edward Coke in 1610 (the case of Dr, or Mr, Bonham practising medicine without a license – as was required by both proclamation of the King AND, more importantly, by Act of Parliament).

    Chief Justice Coke declared that Parliament did NOT have the power to make a noncrime a crime (any more than it had the power to make 1+1=73) and Chief Justice Sir John Holt (of the Glorious Revolution and all that) agree.

    But then came the Blackstone Heresy (of Sir William Blackstone) – the doctrine that whatever Parliament says is crime (say having red hair) is a crime. The insanity that the Americans rebelled against.

    Sadly modern judges are infected by the same insanity – and would also declare that non crimes are crimes, for they do not serve Justice, they serve its sworn enemy Social Justice. Principles are important – in the end they decide everything.