Nevertheless, the crimes were ‘all of one name and species, all of one class and description, and stamp a character upon the pannel, which a jury and the Court are bound and entitled to look to’, and he, the Lord Advocate, ‘ought to be allowed to proceed to trial against Burke, on the three different charges for murder contained in this indictment’. 5
The Dean of Faculty then rose to press the arguments put by Mr Robertson. He conceded that there was nothing illegal in the framing of the indictment, but insisted that it was a matter for the Court’s discretion. The three charges were separate charges of the murder of ‘different persons, totally unconnected with one another, living in different places, and in different circumstances; and the last of these acts is said to have been committed in conjunction with a third person, who is not stated to have any connexion with the other acts’. If the prosecutor were able to prove one of these murders, it would infallibly lead to the death of the defendant, so where was the necessity for charging him at the same time with other murders? ‘I may have an alibi as to one – in another there may be no murder committed – in a third it may have been committed by a different person.’ But the jury would be perplexed by the mixture of the whole together and the prisoner ‘may be convicted upon the mere impression of guilt from the multiplication of charges, without any sufficient evidence in any one of them’. 6
These legal arguments about the framing of the indictment were protracted, with much quoting of precedents going back as far as 1696, and it was late in the morning when the Lord Justice-Clerk asked his fellow-judges to give their opinions on them. Lord Pitmilly spoke first. He thought it right that McDougal’s case should be separated from the two acts she was not charged with, and considered that, since Burke’s counsel had requested it, Burke should be tried on one charge first, and the others afterwards if necessary. Lord Meadowbank agreed, and Lord Mackenzie announced, at considerable length, that he had nothing to add to what had been said.
The Lord Justice-Clerk’s decision was that the discretion of the Court could be exercised in allowing Burke to be tried separately on each charge, but the public prosecutor could choose which charge he wished to proceed with first. The Lord Advocate proposed to proceed with the third case, that of Mrs Docherty, and since that was the murder with which McDougal was also charged as ‘art and part guilty’ along with Burke, she could not be prejudiced by reference to the other murders with which she was not charged, and so he would try them both together.
The prisoners were asked if they were guilty or not guilty of the third charge in the indictment, and both pleaded not guilty. A jury of fifteen men was then chosen by ballot and sworn in, consisting of local merchants, tradesmen and artisans. Among those summoned for jury service that day was a local portrait painter, George Andrew Lutenor, but his name did not come out in the ballot. If he had been chosen, one wonders if his close attention to the evidence in the case might not have been superseded by his fascination with the physiognomy of those taking part in the drama. Lutenor did make drawings of some of the participants, including Maggie Laird with her child in her arms. The chosen members elected John McFie, a merchant of Leith, as their chancellor, or chairman. By the time the trial actually commenced, it was already midday on Christmas Eve.
Sir William Rae began calling his witnesses, and most of them were brief and to the point. James Braidwood, a builder and fireman, had made the house-plans produced in evidence. Mary ‘Stewart or Stuart’ said that ‘Mrs Campbell’ had been in good health when she left her lodging-house on the morning of 31 October, and Charles McLauchlan, who also lodged there, confirmed this and said that the woman went by the
The Dean of Faculty then rose to press the arguments put by Mr Robertson. He conceded that there was nothing illegal in the framing of the indictment, but insisted that it was a matter for the Court’s discretion. The three charges were separate charges of the murder of ‘different persons, totally unconnected with one another, living in different places, and in different circumstances; and the last of these acts is said to have been committed in conjunction with a third person, who is not stated to have any connexion with the other acts’. If the prosecutor were able to prove one of these murders, it would infallibly lead to the death of the defendant, so where was the necessity for charging him at the same time with other murders? ‘I may have an alibi as to one – in another there may be no murder committed – in a third it may have been committed by a different person.’ But the jury would be perplexed by the mixture of the whole together and the prisoner ‘may be convicted upon the mere impression of guilt from the multiplication of charges, without any sufficient evidence in any one of them’. 6
These legal arguments about the framing of the indictment were protracted, with much quoting of precedents going back as far as 1696, and it was late in the morning when the Lord Justice-Clerk asked his fellow-judges to give their opinions on them. Lord Pitmilly spoke first. He thought it right that McDougal’s case should be separated from the two acts she was not charged with, and considered that, since Burke’s counsel had requested it, Burke should be tried on one charge first, and the others afterwards if necessary. Lord Meadowbank agreed, and Lord Mackenzie announced, at considerable length, that he had nothing to add to what had been said.
The Lord Justice-Clerk’s decision was that the discretion of the Court could be exercised in allowing Burke to be tried separately on each charge, but the public prosecutor could choose which charge he wished to proceed with first. The Lord Advocate proposed to proceed with the third case, that of Mrs Docherty, and since that was the murder with which McDougal was also charged as ‘art and part guilty’ along with Burke, she could not be prejudiced by reference to the other murders with which she was not charged, and so he would try them both together.
The prisoners were asked if they were guilty or not guilty of the third charge in the indictment, and both pleaded not guilty. A jury of fifteen men was then chosen by ballot and sworn in, consisting of local merchants, tradesmen and artisans. Among those summoned for jury service that day was a local portrait painter, George Andrew Lutenor, but his name did not come out in the ballot. If he had been chosen, one wonders if his close attention to the evidence in the case might not have been superseded by his fascination with the physiognomy of those taking part in the drama. Lutenor did make drawings of some of the participants, including Maggie Laird with her child in her arms. The chosen members elected John McFie, a merchant of Leith, as their chancellor, or chairman. By the time the trial actually commenced, it was already midday on Christmas Eve.
Sir William Rae began calling his witnesses, and most of them were brief and to the point. James Braidwood, a builder and fireman, had made the house-plans produced in evidence. Mary ‘Stewart or Stuart’ said that ‘Mrs Campbell’ had been in good health when she left her lodging-house on the morning of 31 October, and Charles McLauchlan, who also lodged there, confirmed this and said that the woman went by the
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