THE INVERCARGILL TRAGEDY,

Otago Witness, Issue 2688, 20 September 1905, Page 66

THE INVERCARGILL TRAGEDY,

THE DEED AND THE AFTERMATH

(By Oub Repobteb at the Tmal.)

Our jury system — buttress of our liberties and all the rest of it — admittedly makes a mess of things sometimes, and cannot invariably be trusted in conditions demanding rare fortitude and delicacy. This, it seems to me, has been strikingly exemplified in what we know as the Invercargill Tragedy. Daniel Swan lies under sentence of death. A jury of 12 men returned against him an unqualified verdict of murder. I, as a quite unbiassed jury of one, should shrink with horror from the mere idea of recording such a verdict in such a case. Men differ in their ideas as in their qualifications. The Invercargill jury was composed of men who were not alienists or men of scientific training. After an hour's retirement to consider one of the most intricate and difficult criminal cases I ever saw presented to a jury, they returned to court with their verdict. I think the jury blundered, and because a man'.s life lies on the hazard I feel compelled to protest. First, as to the facts. Daniel Swan came to New Zealand some number of years ago from Victoria. While being, one gathers, always a man of rather vague intelligence, he had been of a rabidly religious habit. All the world, as he envisaged it, was dwarfed and narrowed to the cramped proportions of his creed. His religious zeal was held by members of his family to have attained to the frenzy of religious mania. The man seems to have made his home atmosphere intolerable by his incessant explosions of dour religiousness. His children, now attaining to years of discretion, rebelled, and flatly stated their determination to have no more such over-doses of theology; and on that Daniel Swan appeared to relapse from bitter or argumentative loquacity into a certain brooding moroseness that insensibly j pcisoned all his being. Intermittently, | he drank to such excess that his wife took out a prohibition order against him. In his lighter or jocose moods his pranks, as now remembered by his children, were extraordinary. Next, he became the prey | of a horrible delusion. He thought that j his wife — a woman well advanced in years and surrounded by her children— was unfaithful to him. He treated her, on one or more occasions, brutally; and in the end she obtained a separation order, and they lived apart. The man's jealousy redoubled. The wife kept her home decently, and had boarders— or one boarder at least, a person named James Clark. Clark's wife had left him for her own comfort, and Swan decided that Clark was the paramour of Mrs Swan. Swan went about muttering of his fancied wrongs; that vile j obsession gnawed untiringly at his heart, j Matters stood so when, about Christmas last, Mrs Swan consented to receive her husband as a boarder. There was no restitution of conjugal rights. Swan merely lived in his wife's house. It is not in evidence that he paid regularly for his board, and the conclusion seems to be that, Mrs Swan, with the inherent motherliness of all clean women, took in her morbidly jealous husband out of pity for his condition. For some months thingswent reasonably well, and Swan's behaviour gave no special cause for scandal or complaint. Once or twice, indeed, he vented his sullen rages with regard to Clark, and on one' occasion Clark actually left the house in consequence. About here there arose another complication. Clark had in some way attracted Swan's eldest daughter, Flora, and Flora persuaded him to return to the Swan house. Gveat matters hang on little things. Had Flora Swan not coaxed her admirer back, there might possibly have been no Invercargill Tragedy. But he was coaxed back, and when he came the hand of the unseen signed another of those inscrutable decrees, so that Mrs Swan was doomed. The discovery of the friendship between Flora and Clark merely served to strengthen Swan's primary delusion. He said that Clark was using the daughter as a blind, in order the more safely to pursue his intrigue with the wife. Let it be noted that all this time Swan wa3 suffering physical as well as mental agonies He complained of an old bruise on his head received in a quarry, and said repeatedly that "he thought the stone was

'I'hpumatism and sciatica, and these brought on insomnia. All ihe time, too, the man, although no longoi openly associated with any <3ce<. remained a rabidly religious man: for religion js not in tho profession, but in ihe temperament. lie seized on any chance to diseu-s or dogmatize on theology after his man nor. Ho road his Bible regularly. He was not an ath-cist, a blasphemor, an unbeliever of any sort or quality ; he was, indeed, a man quite desperatelj' orthodox, a sour and grasping Cahinist, a stubborn and unreasoning determinisl. And so, not to retell a sickening story with too servile fulness, matter, stood on Juno 28. Swan had had a bad night -rheumatism, sciatica, insomnia, as vicious a (rio of evils as ever poor human creature went, to bed with. He gloomed about Ihe house all day. sullen and snarling beyond his wont. There waa wild look in liis eye, and more than one of them noticed it, one grown son being especially disquieted by it. The day drew on to night. Swan and his wife were sitting quietly in a cosy room, and thenyoungest daughter (Rfooda) was ironing at the table near by. Then the dark presence that had groped in Swan's brain for months or years rose irresistibly, flourishing that signed decree. There follows the fearful onslaught. The woman is battered devilishly and has her threat slit. Then Swan. his fato accomplished, rises with an exultant yell that echoes through the house, and Swan is in his turn attacked by his two \ounger children. I have never dreamt of a more pitiful picture. To protect the mother, already so infinitely far beyond all need of protection, little Rhcda struggles bravsly with the frantic man; and before little Dan comes to help her, little Rhoda is herself sorely hurt. Little Dan runs from the room at the heels oj the murderer, and little Rhoda, the bright, heroic child, stoops tenderly to kiss the poor battered woman, and then goes away, the blood of tho dead mother warm on the lips of the child. The thing must be simply and quietly told, but I never heard of anything more pitiful than that. Meantime, Swan h secured and removed. He heaps imprecations on Clark, with alternating expressions of love of the dead. The frenzy past, he is very cool. Me asks for a cigarette. These, briefly, are the facts as given in evidence. This is a mere summary, with no twist or undue colouring. The trial was reported at length m the Ota-go Daily Times, as a trial of special interest and significance. Swan is found guilty-just that He is. in the horrible old phrase, to be hanged by the neck until he is dead. What then? I followed this trial closely, and whatever uneradicablc bias I may .have must of necessity b9b 9 against the prisoner. The S«' revolting, inhuman altowt her bon-ble. But I am convinced that Daniel Swan haa for a long time been partially distraught and demented, and that at the timl he committed this, outrage he. wa* drhen irresistibly by insane homicidal impulse. The task of Mr Barclay who appeared for the prisoner, wag naturally one beset b) extraordinary difficulties. He had to establish a theory of insanity iv a * urioufc i y involved criminal case-lo exeueft from re™ibUity a man against, whom feekn* had rS high L the community from which the Jury wa, drawn-to save from the gallons a mil already convicted and condemned at STe- bar of popular prejudice a nd generou* indignation; and he had to esiabhsh his case to a jury of men of ordinary education, men unlettered in the special sense. It is fair and reasonable to assume that the majorities of all ordinary juries are, by their very callings and chosen avocations, made unfit to weigh any such delicate iswes. Mr Barolav himself is only an educated layman. Even one of the medical witnesses, and the ! best of them, evaded a most important question, and took refuge in a term so utterly unscientific ac "sheer wickedness. i What is a jury to do, when a medical man with a strongly-marked hypothetical case presented to him, says, in effect, In such a case I should say that the man committing the crime was (1) sane or (2) insane .' Mr Justice Cooper, plainly exhibiting the deepest and clearest knowledge of the literature of insanity that 1 have yet hart opportunity of observing in any colonial judge, could not really help such a jury much. The judge's summing up was masterly, but it was constantly laboured by the judge's necessity of stating the law as it bore on the facts. After every lucid proposition came the clouding "but." And in the middle of the summing up. the iury was suddenly taken away for an hour to lunch. If it had been possible to examine [ these jurors on the actual knowledge gained in that summing-up, the results could scarcely have failed to b^ farcical. In my brief summary of the facts in. this case J have merely taken the evidence as | it appealed to me, and have refrained from | quoting iron* I\lr Barclay's special pleadings for his client. What can be said then, on this showing, of the hypothesis of insanity? It was put to the jury, as regarded its scientific aspect, on the case in general as presented by T)r Bevan Lewis and Dr Maudsley. Or'ly these authorities were cited to the iury, and in fairness I can only cite them here. The sombre eloquence of Maudsley can be left altogether out of the count, since it was on Lewis that the defence chiefly relicf 1 I do not pretend special knowledge 1,, any matter co foreign to my province, but I may be permitted to quote briefly from Dr Bevan Lewis ("A Text Book of Mental Diseases, with Special References to the Pathological Aspects of Insanity"), and leave the extracts to simmer in th". public mind as correctives of prejudice and pre-conception in this deplorable. ca-.se. Page 179: — "Suddenly, amidst, it may be, the pleasures of the family circle, or at the moment of devotional exercise, to the intense horror of th^ subject, th& morbid feeling 1 suggest* itself without axiy obvious provocations (like a phantom dream), and requires all his efforts to dispel it. The horror of the position will often drive the sufferer to a free confession of his state, and to urgent extremities for proteoj tion against such unbidden, mysterious impulses, as numerous cases attest ; but instances occur where the unfortunate subject has striven for years with his infirmity, and never revealed his deadly secret until compelled to do so upon the com nission of some desperate act. The motiveless nature of such acts may_ be called in question, and grave suspicion be expressed, from the admitted difficulty of always assigning a consistent motive even for the acts of | the sane : but, just as readily as we may err in imputing no motive to an act when such is not clearly obvious, 6S n'e may even, morg ea&Lbr. fell into

' the- opposite en or of assigning a wrong motive to ant insane impulc-e, influenced by accidental circumstances in which the subject happens to be placed." Note that Daniel Swan had been living" many months in his wife's house, in comparative quietude, acting kindly to his children, only persisting so morbidly in hi* unfounded idea that his middle-aged wife, and Clark (young enough to bo her son) were on terms of the grossest intimacy that the unjustified suspicion had attained to the intensity of an insane delusion. On the night of the murder he had sat peacefully by the fireside up to i.he very moment of the outrage, and when tho paroxism passed | he became completely calm, while shli peri sisting in his delusion. Invercargill people, theiv humanity reasonably in revolt, cannot take a dispassionate view of this lamentable business. They stubbornly offer to tho objector as proofs of Swan's sanity the very evidences that the great authority cites a? evidences of insane impulse. So" tight a hold has this preconception got of the community- that, as before mentioned, even a medical man of deserved repute, and special experience cannot bring himself to give a direct answer to a hypothetical proposition which seems to embody the circumstances of Swan's unhappy case. Page 182:— "The intensity of themorbid process is further indicated in the utter loss of self-control. 'Everything passes out n£ mind,' said on© such unfortunate subject to us, 'except the one thing I wish to accomplish — I can think of nothing' but the desire to kill some one.' The one burning idea prevails to the exclusion of all others at the height Of the attack, and is (in all respects, as Mauddey has insisted) 'a convulsive idea springing from a morbid condition of nerve-element, and i comparable with a convulsive movement.' " Note, again, the desire to kill "some ! one." Swan says he desired to kill Clark, [ and Clark was not in the room ; nor, for I aught Swan knew, in the house. Swan I fell on his wife, and having battered her I horribly, fracturing her skull and both her jaws, dragged a razor across her throat. Then, as he turned with a yell of maniac exultation, his little daughter rushed ia .to save hor mother. Ho used her brutally, | causing serious injurhs; but when a | moment later the small boy came in, Swan merely threw him off and ran away. Out in the street he was slightly violent when first secured; but almost immediately became still, and was soon asking for a cigarette. The paroxysm had passed, the convulsion spent its strength. 1\ 183. — A notable instance is recorded by Dr Juke cf a young man, aged 25 years, of gentlemanly appearance : — "Af* er giving his adrtre s, and declaring himself to be a schoolmaster in a certain well-known college, he begged that the Commissioner of Police would take him in charge, with a view to his confinement in the asylum of St. Ann. He then explained that he was not mad in every respect ; c n tho contrary, he possessed the full use of his mind, only whilst sleep-ing amongst the pupijs confided to his charge he was seized with the most destructive inclinations. Night after nighfc, in an agony of fear, he had struggled with himself, and it was with the greatest diff cutty that, so far, he had succeeded in restraining h : s intense desire to strangle one or two of the little boys. Now all his energies were exhausted; he lelfc that this unknown power would ultimately triumph over him, and. rather than commit the crime, he placed himself in the hands, of the police. At this moment a boy accused of theft was brought into tho room. The eyes of {he schoolmaster were immediately lit with a strange light, and, had it not been, for the timely assistance of a brawny policeman, the boy would have been throttled before the very eyes of justice." A strange light was seen in Swan's eyes as that day of the 28th June drew on to its tragic ending. Note, too, that in the case jlKfc cited, the homicidal impulse was not spurred and maddened by the constant goad"* ing- of insane delusion. Daniel Swan's hallucination was, perhaps, the cruellest possible in his case, for he is plainly not of the stuff of which complaisant husbands are made. But here quotation must cease. It must be noted, in fairness, that the special difficulties placed in the way of this jury were in full proportion to this jury's incapacity to try co intricate an issue. The law, as clearly stated by Judge Cooper, is rather overwhelming. "If you have any doubt at all of the prisoner's guilt, you mmt resolve that doubt in favour of the prisoner; if you have any doubt at all of the prisoner's insanity, you must resolve that doubt in favour of the Ciown." I have not, I dare pa}-, ihe legal mind, nor the training needed to split hairs with due minuteness of precision ; frut the law* thus stated opens extraordinary and appal-) ling vistas. A man may bp as guilty a 9 hell, stepped to saturation with the snething venom of iniquity, but if the jury has jg shadow of doubt on it. he must go froe;| but though a m«>n may be as mad as Bed-* lam concentrated, if the jury has any doubt' of it. to the gallows with him! That is the law — for Judge Cooper is abundantly ti-u-t-worthy to interpret the law. To n:^ it seems rather ghastly, and I am glad that' persons of my profession ar e generally re* garded as exempt from service a? jurors.The Crown, says the lav/, has not to establish any accused person's Fanity. Cer--tainly the law in this, wretched case has fill* filled that negative duty with absolute thoroughness. So far as we heard in court, the man has been under no skilled ofcr-erva-* tion as to the state of his mind. When tile question k mooted whether amr common jury should be asked or permitted to give a verdict as to the sunity_ of a' prisoner in such a case, one comes imme-* diately to a region of dangerous debate, and into that territory I do not seek to put my foot. But I have considered this case; of Daniel Swan with all the earnestness and) thoughtfulness of which I am capable, and! I believe that the crime of Daniel Swan was committed under pressure of insane homicidal impulse. It is a clear aud sunn^ day this Sabbath, the air balray and tonio with the spring, mere living a delight; buf; I do protest that the thought of that distraught brother-man, sitting; in his cell under the imminent shadow of the gallows, poisons everything for me at the moment. Is tha letting of his life of such high moment to this humane community that he may not; even have such poor benefit of thp doubf; jjEhjeb is^at befctja Hit <tev»b.t) as will ajaro

his neck and consign him to some such asylum as may be provided for the criminal lunatic? The man is full of aches and pains, and his "conscience must heap each minute high with terrors for him. A poor, forlorn, disconsolate, remorseful wretch he is, with nothing but hisjiaunted mind and his religious dogmas to stand between his naked soul and the Infinite. Must his Christian brethren arise in their communal strength and strangle him?