At the close of the fifth day, after putting in the bulk of the letters, the Lord Advocate proposed to read entries in L’Angelier’s pocket-book from the 16th of February to the 14th of March, 1857, in support of the first and second charges. They were undoubtedly in his own handwriting, and statements of what he did on those days. It was objected that the book was not regularly kept, that the corroborative evidence was not sufficient, and that two of the entries were contradicted by witnesses who had been examined. The Court took time to consider, and on the next morning delivered the following judgments.

The Lord Justice Clerk.—“The admission of hearsay evidence was an established rule in the law of Scotland, but under those restrictions and conditions, which went in many circumstances to its entire rejection. What was now proposed to be admitted was this—certain memoranda or jottings made by the deceased, in which certain things were said to be contained, which went directly to the vital part of this charge. The Dean of Faculty felt so strongly that he did not scruple to state what the purport of one of these was, in order to show the immense materiality of the point. It was certainly most important for the Court to take care that the rules of evidence were not relaxed merely because it appeared that the matter tendered was of the highest importance to the case. Before evidence could be received and allowed to go to a jury, it must be shown that such evidence was legally competent to be tendered against the prisoner. That was the rule also in civil cases. It was of vital importance in considering whether this evidence was admissible, to ascertain in what circumstances, and, if possible, from what motive, and at what periods these entries were made. Now it was a most remarkable fact that there was no entry regarding the prisoner, or the circumstances connected with her, before the 14th of February; and at that very time the purpose on her part of breaking off the engagement with him and of demanding her letters back had been communicated to the deceased; and his purpose and resolution not to give up the letters and to keep her to her engagement were avowed and made known, as it appeared from evidence prior to that date. Then he had a purpose in writing these memoranda—a purpose obviously to strengthen his hold over the prisoner, not only by refusing to give up the letters at that time and afterwards, but probably with the view to hold out that he had a diary as to their interviews and communications, so as to endeavour to effect his object of preventing the marriage, and of terrifying her into giving up her engagement with Mr. Minnoch. He (the Lord Justice Clerk) made this observation not merely with regard to the weight and credibility of these entries, but with regard to their admissibility; because in the case of hearsay evidence one could ascertain from the witnesses the time the statement was made, all the circumstances and all the apparent motives which could be collected as to the statement being made by the deceased. But when we could not know with certainty the motive with which the man made the entry, or, perhaps, as in this case, could perceive reasons why he made the entry as against her, intending to prejudice her in one way, not of course with reference to such a trial as this, but with reference to her engagement, he thought it could not be said that this came before the Court as a statement recorded by him as to indifferent matters, or as to matters in which he might have not had a strong purpose in making the statement. Further, it might be a record of a past act. He felt the force of what the Lord Advocate had said, that supposing in this book there had been an entry that this man purchased arsenic, would not that have been available in favour of the prisoner. An illustration of this point had been suggested to him by a person whose authority and experience were of the very highest. Take an action of divorce against the wife where the paramour was dead; would an entry in any diary of his that he had enjoyed the embraces of this woman on such a night in the absence of her husband be proof against the wife? He thought not. What was proposed in this case was to tender in evidence a thing altogether unprecedented, according to the research of the Bar and the Bench, of which no trace or indication occurred in any book whatever, viz., that a memorandum made by the deceased should be proof of the fact against the panel in a charge of murder. He was unable to admit such evidence; it might relax the sacred rules of evidence to an extent that the mind could hardly contemplate. One could not tell how many documents might exist and be found in the repositories of deceased persons; a man might have threatened another, he might have hatred against him, and be determined to revenge himself, and what entries might he not make in a diary for this purpose? He had a faint recollection of a case in 1808—the trial of a man Patch for murdering Page, or of Page for murdering Patch—in which some letter of the murdered man, prior to his death, was used; but he had been unable to find the case, and he had no notion if it was of the character he had alluded to. However, in the meantime, as the point was perfectly new, and as it would be a departure from what he considered to be an important principle in the administration of justice, he thought this evidence could not be received.”

Lord Handyside.—“The special point is, whether the entries of certain dates—two in number—are to be read and made evidence for the prosecution, as regards the first and second charges in the indictment. The whole of these entries have been written with a lead pencil. I notice this to make the observation that ink and penmanship afford to a certain degree a means of ascertaining whether entries are made de die in diem, thus having the character of entries made daily; or, on the contrary, of several entries having the appearance, by change of ink or of pen, of being made at one time, and so after recollection. Where all the entries are in pencil, there can be no security as to the time when the entries are, in point of fact, inserted, and that they are not ex post facto; or that the original entries have been expunged, and others substituted in their place—whether this be a correction of memory, or with purpose and design of another character. The party making such entries in pencil has entire power over what he has done or chooses to do.” Then alluding to the fact that no authority for such evidence could be found, which entitled the objector to the evidence to throw on the tenderer the burden of showing that it ought to be received, the learned judge continued—“I think the question one of great difficulty—at least I have found it so. Had the writer of the memorandum been living, they could not have been made evidence—of themselves they were nothing. They might have been used in the witness-box to refresh the memory, but the evidence would still be parole. What would be regarded would be the oath of the witness to the facts, time and person; and if distinct and explicit, though resting on memory alone, the law of evidence would be satisfied, irrespective of any aid by memorandums and letters, though made at the same time. It is the oath of the witness to the verity of his oral statement in the box which the law requires and regards. But if the writer has died, is this circumstance to make such memorandums thenceforward admissible as evidence by their own weight? Are they, the handwriting being proved, to be treated as written evidence? That would be a bold proposition. Death cannot change the character originally impressed on the memorandums, and convert them from inadmissible to admissible writings. They are private memorandums, seen by no eye but the writers as such, subject to no check upon the accuracy of their statements, whether arising from innocent mistakes or from prejudice or passing feeling. I do not say that they are to be supposed false and dishonest, for the idea is repugnant, from the consideration that it would be idle to falsify and invent when memorandums are intended to be kept secret by the writer. But it is quite conceivable that vanity might lead to statements being made wholly imaginary, with a view of the subsequent exhibition of the book, and were its admissibility as evidence set up by death, it might become a fearful instrument of calumny and accusation. I speak just now of private memorandums, diaries, and journals, taken in the abstract. As to other writings of a deceased person, such as letters, I do not say these may not become admissible as evidence by reason of death, though during life they could not be used. They thus become analogous to words spoken—to representations made and conversations held—by a deceased person, the proper object of hearsay evidence. It was contended that the principle on which hearsay evidence is admitted would extend to anything written by a deceased person. It is assumed to be a declaration in writing of what if spoken would have been admissible on the testimony of the person hearing it. And on the first view it would seem that the written mode is superior to the oral, from the greater certainty that no mistake is committed as to the words used. But this would be a fallacious ground to rest on, for words written would require to be taken without explanation or modification; whereas words spoken to another are subject to the further inquiry by the party addressed as to the meaning of the speaker in order to a better and more thorough understanding of the subject of communication, the object of making it, and the grounds on which the speaker’s statements rest. And all these things may be fought out in the examination of the witness who comes into court to give this hearsay evidence. The value of hearsay evidence, and the weight to be given to it, come thus to depend much on the account which the witness gives of the circumstances under which the communication was made to him, as to the seriousness of the statement and what followed upon it in the way of inquiry and reply. Now a mere writing in the way of a memorandum or entry in a book in the sole custody of the writer till his death can be subject to no such tests. Its very nature shows that it is not intended for communication. It may be an idle, purposeless piece of writing, or it may be a record of unfounded suspicions and malicious charges, treasured up by hostile and malignant feelings in a moody, spiteful mind. These views impress me strongly with the danger of admitting a private journal or diary as evidence to support a criminal charge. I think the question now before us must be decided as a general point. As such I take it up. If I were to confine myself to the special and peculiar circumstances of this case, I should see much perhaps to vindicate the court in the reception of the evidence tendered. There is to be found in the letters which have already been made evidence much to give corroboration or verification to some at least of the entries in the pocket-book. But I feel compelled to close my mind against such considerations, and to look above all to a general and, therefore, safe rule by which to be guided. I have come, therefore, to be of the opinion that the production tendered as evidence in the case in support, as I take it, of the first and second charge, ought to be rejected.”

Lord Ivory said the opinions just delivered had relieved his mind of a burden of responsibility under which he laboured, and which he was ill able to bear. He had given the most anxious, serious, and repeated consideration to this matter. He had found little or nothing in the way of authority, and no dicta so precisely bearing on the case as to be of any avail. But judging in the abstract, applying the rules as applied to other cases, endeavouring to find a principle by comparison of the different classes and categories in which evidence had been distributed and in which it had been received, he felt himself totally unable to come to a conclusion that the evidence of this document should be excluded from the jury. As his opinion could not in the least degree influence the judgment, he should be sorry to add anything that would even seem to be intended to detract from the authority of the judgment now given; least of all should he be disposed to follow such a course in a capital case, where the judgment was in favour of the prisoner. He would content himself, therefore, with simply expressing his opinion. It appeared to him that this document should have been admitted valeat quantum, and that the jury should have considered its weight, and credibility, and value.

“I first experimented,” said the witness, “on the contents of the bottle (the fluid found in the stomach), and detected 8½ grains of white arsenic. By one course of experiments I reproduced the arsenic in a metallic form—it is in this tube (produced). The earthen jar contained part of a human stomach. I noticed a peculiar appearance in it, which I have noticed in cases of poisoning by arsenic—there was a small portion of whitish powder adhering to the lining of the stomach, too small a quantity to enable me to ascertain what it consisted of. I then examined the intestines that were in the jar; I subjected them to a chemical analysis, and the result was the detection of a very small quantity of arsenic. There was also in the jar a part of a human liver. I subjected about a quarter of a pound of it to experiment, and obtained a quantity of metallic arsenic (produced); it was too minute a quantity to weigh. That in the stomach was the only quantity I weighed; that would be sufficient to cause death. I had the opportunity of witnessing a case where 2½ grains killed; the general quantity would be 8 grains; I look upon that as an average dose. It would generally be fatal. Vomiting is almost invariably the consequence of arsenic introduced into the stomach. A person attacked by that would be likely to throw up a portion of the arsenic. Looking at the quantity I found, and the parts in which I found it, in my judgment the arsenic I found had been taken not more than two or three hours before death, but that is a matter of opinion; a dose might have been given before. It would depend upon many circumstances how soon it would find its way into the liver.”

Cross-examined.—Question.—“About two grains of arsenic you say would cause death; do you mean taken together?”

Answer.—“Yes, or less; 2½ grains have done so. I know nothing of this transaction but from the examination. I found a very small portion in the liver, perhaps one tenth of a grain in a quarter of a pound. A liver weighs about 5 pounds, and supposing the arsenic to be equally diffused, there would be twenty times that quantity—equal to 2 grains. My observation with reference to the time it had been taken was in reference both to the stomach and the liver.”

Question.—“Are the data at all safe?”

Answer.—“Yes; I will tell you why. I found in the stomach 8½ grains of arsenic, and there was not much in the intestines. I conclude, therefore, that there had not been time for it to have passed into the intestines, which would have been the case if it had been taken long before death. But there was only a trace in the intestines, so I conclude that it was taken a very short time before death. That furnishes datum to me to form a judgment on the subject of hours. Food remains five hours before it passes into the intestines. I am able to say that the contents of the stomach pass into the intestines in four, eight, or ten hours, from experiments I have performed on living subjects. I have not the least doubt. I saw the intestines; they were in the jar. They did not appear to have been influenced by arsenic; they were slightly red, and there were traces of arsenic. I have reduced something that was in the intestines into a metallic state. I experimented on it, and found it was arsenic. It was destroyed in the experiment to which I was obliged to submit it to prove it was arsenic. It was not likely that I should find it in the liver without some being in the intestines. The time would not depend on the constitution of the person. Digestion depends upon the constitution, but I am speaking of the average. Digestion is more or less rapid according to the constitution of the person who has received the subject matter. I have heard of cases in which matters which would not digest have remained three or four days, but those were solid matters. I think liquids pass into the stomach (intestines?) under all circumstances in five hours as (after?) they are imbibed. There is a valve which prevents solid matters from passing into the stomach till they are digested. The arsenic was in a liquid state, all except a little white powder on the side of the stomach. I am obliged to have recourse to an average to form an opinion as to how long it would take. We have no means of dealing with an independent case except by an average.”

By Mr. Bodkin, Q.C.—Question.—“What did the contents of the stomach look like?”

Answer.—“Thick gruel. They were filtered, and I examined the filtered portion, and my opinion is that the arsenic had been taken two or three hours.”[127]

“When the prisoner called me in a little after nine in the evening, I found her husband in bed retching violently, and I gave him water half-a-dozen times, and then went for Dr. Toulmin. At five o’clock that day the prisoner said she was going for the doctor, to tell him to send her husband something for the bile, but that he did not want her to do so. A second time during the evening she told me she wanted to do this, and that he would not let her, and that she had applied to a neighbouring doctor, but that he had refused to come, and only sent some pills. After her husband died she said, ‘How true were Dr. Toulmin’s words,’ that, ‘when her husband once took to his bed, he would go off like the snuff of a candle.’” [Dr. Toulmin had no recollection of ever having made such a statement.] “Next day the secretary of the Benefit Society to which her husband belonged called and had some conversation with her. Before that she had spoken to me about the Benefit Society, and said if her husband died she should have the full benefit of it. On the day of the post-mortem she asked me if I had asked Dr. Toulmin what was the cause of death, and I said, from what I heard, it was poison; when she said, ‘Do you think I am guilty?’ I replied, ‘I do not doubt you.’ Then she walked about in an agitated manner and appeared distressed. On the day of the inquest she said to me, ‘You know, Mrs. Gillett, that Annie (her little girl) ate the rest of the gruel.’ I said ‘Don’t say so; I did not see any of you eat it.’ She said, ‘If I did not Ashby did, and he ought to be the first witness’ (Ashby said he did not see the deceased or anyone eat it). On the day of the adjourned inquest she asked me if poison had been found, and when I said ‘Yes’ she said ‘I am innocent; he was a good husband, and it is not likely I should do such a thing. Dear creature; if that is the case he has done it with his own hands.’ I replied ‘It is not likely, as he purchased a new pair of boots the morning before his death.’ Whilst we were talking Andrews, the summoning officer, came in, and she said to him ‘Mrs. Gillett knows that I ate the rest of the gruel,’ and I replied ‘I know nothing about it, or who ate it.’[128] On the 31st of January in her house she said to me ‘Do you think if I had any hand in his death I should not have let him live to to-day and then have received the full benefit from the society.’”[129]

On cross-examination the witness protested that she had repeated these conversations before, and was almost certain she had done so before the coroner and the magistrate. When she said ‘I did not doubt her,’ she meant that she had not the slightest suspicion of her guilt. The witness had introduced the subject of the burial club. The prisoner was kind and affectionate to her husband, and attentive during his illness, and much distressed. The witness had heard the deceased complain of the difficulties into which his wife had plunged him, and on the Monday before he was taken ill they had quarrelled.

“I,” said this witness, “saw the prisoner on the 2nd of February in her house, and told her I had come to ask a few questions, which she might answer or not as she pleased, but that it would be my duty to repeat her answers to the magistrate; that I should like to have some women present to hear, and accordingly sent for two of her neighbours, and when they had come I asked her ‘Did she know of any arsenic being in the house?’ ‘No.’ ‘Did her husband use it in his business?’ ‘No.’ ‘Had she purchased any lately?’ ‘No.’ Brown was then brought in, and she turned pale and agitated. I told her Brown had told me she had, and she said ‘That was true, and she would tell me what for.’ On the way to the police court she said ‘she purchased it for herself, but thought better of it afterwards.’ I asked her what had become of it afterwards, and she said ‘she had emptied it into one paper.’ She then changed the conversation, and said that her husband was very fond of soda and acid powders, and that a woman had told her that he had said he was very troubled in his mind, and did not know whether he should not jump into the river or Clapton pond.”

On cross-examination he excused the presence of the women, on the ground that he wanted to see if Brown could identify the prisoner; that she wanted to say more but that he stopt her, and told her to tell the magistrate.

“That it appeared to him to be a piece of hypocrisy, which accorded with all the rest of his conduct. He wished it to go forth to the public, and that the police themselves should understand, that such proceedings savoured of an excess of zeal which was perfectly unjustifiable, and which ought not to be looked on in any other light than discreditable.”