GENERAL ARTICLES

New Light on Old Murder

The inside story of one of Canada’s most famous trials . . . told by the man who defended Reginald Birchall

I. F. HELLMUTH, K.C October 1 1943
GENERAL ARTICLES

New Light on Old Murder

The inside story of one of Canada’s most famous trials . . . told by the man who defended Reginald Birchall

I. F. HELLMUTH, K.C October 1 1943

Few murder trials have attracted more widespread, attention, or such lasting interest as the 53-year-old Birchall case. Various books of reminiscences have devoted chapters to it. Now, for the first. time, come the recollect ions of a legal, principal in the trial I. F. Hellmuth, K.C., counsel for the defense.

Recently retired from practice after 64 years before the Bar, Mr. Hellmuth, now in his 90th year, has an amazing memory; is as mentally alert as ever. Further memoirs from his pen will appear in coming issues of Maclean’s.

IN JANUARY of 1890 I was returning from a visit to England on a White Star ocean liner, and among my fellow passengers were three young Englishmen with whom I made acquaintance. Their names: Birchall, Benwell and Pelly.

Birchall, who was accompanied by his wife, was evidently the leader of the party, and from their conversation I learned that he was supposed to be the owner of a large farm somewhere in Ontario and that the two other young men were apprenticed to him, as farm pupils, to receive training in the art or practice of Canadian farming. Their parents had paid Birchall a sum of money by way of a premium on their sons’ educations. What that sum was, was not mentioned directly, at least by Birchall, nor did he say where his farm was, although he talked rather grandly about the large acreage he had acquired when previously in Canada.

There was one matter that appeared rather curious to me. Birchall was frequently in company with either Benwell or Pelly, but very rarely were the three together. Also, the two younger men, Benwell and Pelly, seemed to fight shy of one another. I took quite a fancy to Benwell who was a genial and attractive youngster of perhaps 20 or 22 years of age, and we often smoked and chatted together. He spoke as though he did not entirely appreciate being shipped off by his father to the colonies, as he termed it, and asked me many questions about farm life in Canada. My answers did not seem to fill him with any great enthusiasm.

Birchall, as soon as he discovered that I was a Canadian and came from Ontario, began to question me as to what part of Ontario I came from and what my occupation was. When I told him I was a lawyer and practiced in London he remarked that he might require the services of a solicitor to draw up contracts, require etc., and would be glad, if I were willing, to have me act for him.

Outside of this he was far from communicative and evaded my questions as to the location of his farm, merely stating it was in the Niagara Peninsula. At the time this did not make any particular impression on my mind as I had no reason then to suspect that he did not possess any farm at all.

In due course I arrived at my home in London and about a week or 10 days later there was delivered at my home on a Sunday evening a telegram dated from Niagara Falls, Ont., which read somewhat as follows: “BIRCHALL ARRESTED WANTS YOU TO COME DOWN AT ONCE.” The telegram was signed “Pelly.” I knew there was no train that evening and assumed the arrest had arisen out of some prank or minor misdeed. I sent a telegram to Pelly asking him to advise at once on what charge the arrest had been made, further stating that I would be down by an early morning train the following day. My astonishment can perhaps be imagined on receiving within an hour an answer which simply said:

‘‘CHARGE IS MURDER OF BENWELL.”

Immediately upon receipt of this message I went to the office of one of the local newspapers to learn whether there had been anything reported in the Press in regard to the tragedy. I found that on the Saturday previous there had been a report of the finding of the body of a man in a swamp bush near Eastwood, Ont., together with a photograph of the deceased which I at once recognized as Benwell.

The report said he had been shot in the back of the head with a revolver and that the contents of his pockets did nothing to identify him. Also, the identification tabs had all been cut away from his clothing. However, those finding the body had come upon a brown leather cigar case not far distant, and on the inside of the case there was scrawled in ink, the name “F. C. Benwell.” This made it certain that foul play had been done and that the murderer had displayed forethought or cunning in an attempt to destroy evidence of identification. He had, however, overlooked, as criminals will, the telltale cigar case.

Notwithstanding the fact thus borne home tome, that murder had been committed, I could not for an instant imagine Birchall as the murderer. The first doubt as to this occurred next morning on alighting from the train at Niagara Falls where I was greeted by Pelly. His countenance and speech showed plainly that he was by no means assured of Birchall’s innocence. I reproved him for his suspicions and proceeded at once to the local jail where Birchall was imprisoned. I then learned for the first time that Mrs. Birchall had also been arrested as an accessory after the fact.

Mrs. Birchall Released

IT MAY be stated that there was no evidence that Mrs. Birchall had any knowledge of the crime, and besides there was the legal difficulty of charging or convicting a wife of being an accessory after the fact to a husband’s crime. Consequently I was able to obtain her release at once and no further proceedings were ever thereafter taken or instituted against her.

My intention of interviewing Birchall was at the moment frustrated by the jailer who stated he had orders from the local Crown authorities not to admit anyone to his cell. The delay did not last long, however, for in answer to my telegram to the Attorney-General of Ontario, permission to interview the prisoner was at once granted.

When I entered the cell in which Birchall was confined, he at once rose from the chair where he had been seated smoking and greeted me with some warmth but without any sign of discomposure—indeed, my recollection of his remarks is: “Very glad to see you, but this arresting me for poor Benwell’s murder is a silly business.” I explained to him that while it might be a “silly business,” the matter had to be treated seriously and that the police must have some grounds that appealed to them as sufficient, otherwise he would not have been arrested.

He proceeded to give me an account of his doings and whereabouts covering the entire period during which the crime must have been committed. The account, if true, provided a complete alibi, and he assured me it would be quite impossible for anyone to prove he had been at Eastwood or near it until after Benwell’s body had been discovered. He further asserted that the first knowledge he had of the crime was when he saw a report in a Niagara Falls newspaper with a reference to the cigar case and its inscription. He at once, he told me, volunteered to go up from Niagara Falls, with a detective, for the purpose of identifying the body and had done so. At the time I had no reason to doubt his story especially as he remarked that no possible motive could be suggested. Perhaps the very calm of Birchall’s demeanor and the cool way in which he set forth the reasons why the crime could not possibly be fastened upon him might have created some suspicion in the mind of one more versed in criminology. But this was my first professional association with so serious a crime as murder and I left Birchall’s cell with a strong conviction that he was not guilty.

I shall pass over, as rapidly as possible, preliminary matters such as his committal by the magistrate and his transfer to the jail at Woodstock. In the meantime certain matters came to light which forced me to a very serious consideration of Birchall’s position. These doubts were not dissipated by the frequent visits I paid to Birchall.

Accordingly, I became convinced that if my client were to be properly defended the services of a counsel with a wider experience should be obtained and I advised Birchall to that effect, pointing out that to accomplish this it would be necessary to find money for his fee. Birchall did not appear to have any means beyond a few dollars, but he thought that some of his relatives or friends in England might be willing to put up sufficient funds to retain a senior counsel, and eventually from this source $500, but no more, was obtained.

Blackstock Enters Case

I approached Mr. George Tate Blackstock and found that although the sum was small he was willing to act as senior counsel for the defense. But he insisted that he would do so only if I continued to act with him and do the most of what he called the “spade work.” No man could have gone into the case with more energy. He spent hours of his time with Birchall and an equal or greater number in consultation with me. He left no stone unturned in preparing himself for the trial.

His moods varied. He would come from a visit to Birchall full of confidence and after another visit he would be very doubtful of whether, as he put it, “we could save his neck.”

It is only fair to say that Birchall himself was no great help to his counsel, for though he consistently asserted his innocence, the facts which he gave as proof varied materially from time to time. Also, matters were coming to light under our investigation which certainly were not encouraging. We knew the detectives working for the Crown under the direction of Mr. B. B. Osler, K.C., who had been specially retained as leading counsel for the prosecution, were making fresh discoveries which they claimed would send Birchall to the gallows.

I will pass over the efforts we made in our various conferences and discussions to hit upon some theory which would account for the death of Benwell without involving Birchall in the crime. But one theory after another had to be rejected and the conclusion that both Blackstock and myself were eventually forced to arrive at was that the only hope for our client lay in the possible weakness of the Crown’s case. We knew the evidence would be purely circumstantial for it was obvious that no one had seen the shot fired, and we did not believe, although in this we were mistaken, that evidence would be forthcoming to show that Birchall accompanied by Benwell had travelled by train from Niagara Falls to Eastwood.

One cannot but admire the secrecy with which the detectives kept to themselves the many important pieces of evidence which they had unearthed.

As the date for the trial approached, the interest of the public grew. Reporters came from many parts of Canada and the United States, and the London Times sent its own special representative. The sheriff was requested to provide accommodation for no less than 50 newspapermen.

The trial took place in the Woodstock Town Hall—the courthouse having been destroyed by fire a few months earlier. It was a fair-sized building but the room in which the proceedings were held was not nearly large enough to accommodate all of the public who desired to attend.

The trial judge was the late Mr. Justice McMahon who had enjoyed an enviable reputation as a great criminal advocate when at the bar. Jurymen were mostly Oxford County farmers.

A dais had been constructed at the end of the hall farthest from the gallery upon which was placed a desk and behind which sat the trial judge. To the left of the dais was a roughly constructed box to which Birchall was conducted by two of his jailers. There was a bench in this box on which the prisoner was permitted to sit. There had been an attempt to give the main room of the old Town Hall the dignified appearance of a regular courtroom but the unstained wood of the dais, witness and prisoner’s boxes defeated the effort.

Able Address

The choosing of the jury, contrary to general expectation, occupied a very short time, and after the prisoner in a clear, strong voice had pleaded not guilty, Mr. Osier proceeded with the opening address for the Crown. Although delivered in moderate tones and couched in simple language it was easy to see from the faces of the jury that they were taking in each link in the chain he was forging about the accused. It was an able piece of work, performed without heat and perhaps more deadly on that very account. The thinly veiled contempt in his voice as he described what he termed the cowardly and treacherous shooting of a supposed pupil and friend had its effect not only on the jurymen but on the spectators as well. When he concluded, the only person who seemed entirely unmoved was the accused. He had been permitted to seat himself on the bench in his box and with a pad of paper on his knees, pencil in hand, he was busily engaged in sketching portrayals of the judge and jury obviously greatly interested in the performance of this work. The gentlemen of the Press could see what he was doing and were evidently not only astonished but amused at his apparent indifference, not to say bravado. It seemed to me that the prisoner’s demeanor had annoyed Mr. Osier and that perhaps the accused had deliberately designed to provoke Crown counsel to a loss of temper and at the same time induce the jury to the belief that there had been nothing in the address to shake his equanimity.

Then came the witnesses for the Crown, each in turn being examined and cross-examined. The examination in chief was conducted by Mr. Osier and the cross-examination in great part by Mr. Blackstock and to some degree by myself. The taking of the evidence occupied nearly a week.

It was shown that after Birchall, his wife, Benwell and Belly had been a few days at Niagara Falls, Birchall and Benwell left on a train bound for the West. Birchall returned alone, and had Benwell’s trunk moved into his own bedroom, telling Belly that Benwell was already settled on one of his, Birchall’s, farms. No further mention of Benwell was made by Birchall until he somewhat excitedly produced a newspaper account of the finding of Benwell’s body and volunteered to go to the scene of the tragedy and identify the man.

We endeavored to argue that such an action was inconsistent with the view of Birchall’s guilt, but naturally this action was susceptible to guilt as well as to innocence.

A number of witnesses professed to recognize the man in the box as one of two young men they saw in the same railway coach as themselves on the day of the murder. One or two were prepared to swear that the two men got off’ the train at Eastwood. However, on cross-examination, several of these witnesses became less certain about the identity of Birchall and were quite incapable of describing other people who had been in the same coach. Their evidence was severely shaken.

Courtroom Drama

Then occurred a dramatic incident. We had been informed that a certain resident of Eastwood was to be called as a witness to testify that he had seen Birchall accompanied by another young man pass together along the street leading to the swamp. We also understood that this witness would not only recognize Birchall as the man he saw in the street but that he would testify that Birchall was the man who had, in Woodstock and vicinity, posed as Lord Somerset a year or more earlier. We obtained certain information in regard to this witness’ physical defects and made preparations accordingly.

This witness told his story with much gusto and with an evident sense of the important role he occupied. After stating that he was standing on the upper floor of his mill which faced upon the street he said he had seen Birchall and had at once recognized him as the pseudo Lord Somerset. He said Birchall passed on the far side of the street with another young man. He was absolutely positive in his identification of Birchall. He was then turned over to Mr. Blackstock for cross-examination. Mr. Blackstock asked him how far his mill was from the near side of the street. The witness answered that it was 50 feet or more and that to the far side of the street, where he claimed to have seen Birchall, would be another 50 or 60 feet.

At a prearranged signal a man stood up in the front of the gallery and Mr. Blackstock then asked the witness to look at the man. The witness having complied, Mr. Blackstock’s next question was, “Who is the man standing up?” To which the witness answered firmly, “I do not know. I never saw him in my life.” It may be mentioned that the gallery was not more than 40 or 45 feet from the witness box. Further cross-examination on other points continued until Mr. Blackstock put the question, “Do you know Mr.—?” To which the witness replied, “Certainly I do. He is my next, door neighbor and I have been intimate with him for years.” After further cross-examination the man in the gallery again rose to his feet and Mr. Blackstock addressed the witness. “Now take a good look and tell me who that man is.” The witness took a long look at the standing figure whose appearance and features were plainly visible not only to the jury but to counsel and press reporters, and again firmly replied, “I never saw the man in my life. I don’t know who he is.” Counsel then asked, “Can you see him well?” “Berfectly,” replied the witness, “but as I told you I never saw him in my life before.” “Well,” said Mr. Blackstock, “that’s your old friend, Mr.—, with whom you have been intimate for years. I suggest you are shortsighted that you could not recognize anyone at 10 feet much less 100 feet.”

Subsequently we called witnesses to prove conclusively the shortsightedness of the identifying witness. This incident, which created no little sensation, afforded an opportunity later on of declaiming against detective methods of manufacturing evidence, and but for the introduction of something far more damning Birchall might have been acquitted.

This was the production of a letter which it was claimed Benwell’s father in England had received from his son. The letter bore the date of Feb. 20—three days after young Benwell’s death.

The message was typewritten and tie signature “F. C. Benwell” was also in type. The letter stated that he, Benwell, was in good health and so pleased with his farm prospects that he would like to obtain land at once. For that purpose he asked his father to send a draft for $2,500 to the order of Birchall. There was a postscript which was an excuse for the signature being in type on the plea that the writer had become so used to the typewriter that almost inadvertently he was signing his letters in type.

There was no evidence to show this document had been written or dispatched by Birchall, and at the time and up to the present moment it has always been a mystery to me why the trial judge permitted its admission, especially as Benwell’s father was not present at the trial to swear to its reception.

Call Few Witnesses

The witnesses we called were not many. We dared not put Birchall in the box as we knew the Crown might extract detrimental facts from him—facts known to the prosecution but not produceable in court without Birchall’s evidence.

Mr. Blackstock made a wonderful address for the defense, especially in view of the almost overwhelming evidence for the Crown. He was really a superb orator and had a wonderful command of English at his disposal. His address was printed far and wide and was cabled in full to the London Times. At the close he was showered with congratulations.

Mr. Osier followed for the Crown. In contrast to his opening address, there was nothing calm or quiet about his delivery. He thundered to the jury, reaching a climax as he read and reread the letter to Benwell’s father. I remember well how he walked up and down before the jury asking them what they read between the lines of that letter and then answering his own question by shouting “Murder! Murder! Murder!” until the whole courtroom rang with the words.

The judge’s charge was strongly against the prisoner and although delivered in precise and quiet tones it was none the less effective.

The jury after two or three hours deliberation returned a verdict of guilty.

The accused, in answer to the question as to why sentence should not be passed upon him, once more protested his innocence. Sentence of death by hanging was then pronounced and was carried out on Nov. 14, 1890.

Birchall went to his death with calmness and fortitude, asserting his innocence to the last moment. He was much liked by his jailers with whom he was always genial and friendly and it was said two of them wept when the sentence was carried out.

He was the “coolest customer” I ever encountered, absolutely without fear but also without a vestige of gratitude for any help or assistance he received.

Only one thing remains to be told. Some months after Birchall had been executed, I was in the smoking compartment of a railway car on my way from London to Toronto sitting next to Mr. B. B. Osier, when he suddenly turned to me and asked what I thought of his attitude in the Birchall case. I replied that I would never have thought of venturing my opinion unless he had asked for it, but now that he had, I thought it was not impertinent to tell him that it seemed to me that he had conducted the case in a vindictive spirit.

He replied, “Perhaps that is true, but you don’t know what I know.” And he proceeded to state that when he was in England, shortly before the trial and after he had seen Benwell’s father, he was given the name of a widow in Cheltenham who had an only son. She had answered an advertisement in the Times for farm pupils and had found that it had been inserted by Birchall under the name of Meluish. She had gone to London with her son and had been informed by Birchall that his fee was $2,500. She had told him at once that the amount was beyond her means and had gone back to Cheltenham.

Mr. Osier had gone to visit her and she showed him a letter which she had subsequently received from Birchall in which he stated that he had been so taken with her son that he would forego his usual terms. If she would send him $500 and insure her son’s life in his, Birchall’s, favor for $2,500, he would accept him as a pupil and take him to Canada.

Mr. Osier said that on reading this letter he felt he had to deal with a reptile and he was determined to crush Birchall.